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§ 


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WITHDRAW* 

L.  A.  CO.  •-•  L 


THE  PRINCIPLES 


OF  THE 


ADMINISTRATIVE  LAW 


GOVERNING  THE  RELATIONS  OF 


PUBLIC    OFFICERS 


BY 


BRUCE    WYMAN 

Ml 
OF    THE    FACULTY    OF   LAW    IN    HARVARD    UNIVERSITY 


ST.  PAUL.  MINN. 

KEEFE-DAVIDSON  COMPANY 

1903 


T 

\p3 


Copyright  1903 

BY 

BRUCE  W  V.MAN 


M 

CO 


PREFACE 


This  book  is  based  upon  an  occasional  course  of  lec- 
tures delivered  in  the  Law  School  of  Harvard  University. 
No  more  is  attempted  than  to  deal  with  the  elements  of 
the  administrative  law  which  governs  the  relations  of 
public  officers.  At  the  same  time  the  matters  brought 
out  are  specific,  so  that  what  is  discussed  may  prove  of 
service.  The  annotation  is  not  exhaustive,  but  is  intend- 
ed to  make  reference  to  a  variety  of  cases,  valuable  for 
the  purpose  of  consultation,  which  bear  upon  the  sub- 
jects discussed  in  the  text.  In  the  appendix  are  collect- 
ed mam*  statutes,  regulations,  orders,  and  forms  which 
govern  administrative  practice  before  the  principal  ex- 
ecutive departments,  so  that  this  book  may  be  a  manual 
for  lawyers  engaged  in  such  matters.  Upon  the  whole, 
this  treatise  deals  with  the  first  principles  of  the  law  of 
administration. '  To  that  end,  the  analysis  of  the  subject 
is  made  upon  the  systematic  basis  that  appears  in  the 
table  of  contents.  It  will  then  appear  that  the  law  upon 
administration  is  still  in  the  making,  because  the  phrase- 
ology employed  had  no  accepted  basis  to  found  itself  up- 
on. So  far  as  this  law  is  developed  this  treatise  purports 
to  present  it. 

B.  W. 


-7*    / 


TABLE  OF  CONTENTS 


CHAPTER  I. 

THE  LAW  OF  THE  ADMINISTRATION. 


1.  Introduction. 

2.  Law  for  Administration. 

3.  External  Law. 

4.  Internal  Law. 

5.  Result  for  Administration. 

6.  Conclusion. 


CHAPTER  II. 

THE   POSITION   OP   THE   ADMINISTRATION. 

§    7.    Introduction. 

8.  Irresponsibility  of  the  Sovereign. 

9.  State  Action. 

10.  Governmental. 

11.  Administrative. 

12.  Responsibility  of  the  OfBcer. 

13.  Public  Action. 

14.  Official. 

15.  Personal. 

16.  Conclusion. 


CHAPTER  III. 

THE  INDEPENDENCE  OP  THE  ADMINISTRATION. 

17.  Introduction. 

18.  Separation  of  Departments. 


TABLE  OF  CONTENTS. 


19. 

Independence. 

20. 

Co-ordination. 

21. 

Subordination. 

22. 

Division  of  Functions. 

23. 

Distribution. 

24. 

Confusion. 

25. 

Conclusion. 

CHAPTER  IV. 


THE  POWERS  OF  ADMINISTRATION. 


26.  Introduction. 

27.  Political  Powers. 

28.  Foreign. 

29.  Interior. 

30.  Governmental  Powers. 

31.  Domestic. 

32.  Colonial. 

33.  Conclusion. 


CHAPTER  V. 


THE  DUTIES  OF  THE  ADMINISTRATION. 


34.  Introduction. 

35.  Discretionary  Duties. 

36.  General. 

37.  Directory. 

38.  Ministerial  Duties. 

39.  Specific. 

40.  Mandatory. 

41.  Conclusion. 


CHAPTER  VI. 

THE   MEMBERSHIP   IN  THE   ADMINISTRATION. 
42.     Introduction. 


TABLE  OF  CONTENTS. 


43.  Classification  of  Officials. 

44.  Officer. 

45.  Employee. 

46.  Selection  of  Officials. 

47.  Election. 

48.  Appointment. 

49.  Removal  of  Officials. 

50.  Arbitrary. 

51.  Judicial. 

52.  Conclusion. 


CHAPTER  VII. 

THE  ORGANIZATION  OF  THE  ADMINISTRATION. 

53.  Introduction. 

54.  External  Divisions. 

55.  Federal. 

56.  State. 

57.  Internal  Subdivisions. 

58.  Department. 

59.  Bureau. 

60.  Division. 

61.  Conclusion. 


CHAPTER  VIII. 


THE  THEORY  OF  ADMINISTRATION. 


62.  Introduction. 

63.  Centralized  Administration. 

64.  Interdependence. 

65.  Superior. 

66.  Inferior. 

67.  Decentralized  Administration. 

68.  Independence. 

69.  Lower. 

70.  Higher. 

71.  Conclusion. 


,ii  TABLE  OF  CONTENTS. 

CHAPTER  IX. 

THE   AUTHORITY   OF  THE   ADMINISTRATION. 

72.  Introduction. 

73.  The  State  as  Principal. 

74.  Limitation. 

75.  Implication. 

76.  Liability. 

77.  Relation. 

78.  The  Officer  as  Agent. 

79.  Authorization. 

80.  Interpretation. 

81.  Responsibility. 

82.  Subjection. 

83.  Conclusion. 


CHAPTER  X. 

THE   EXECUTION  OF   THE  ADMINISTRATION. 

84.  Introduction. 

85.  Extraordinary  Process. 

86.  Enforcement. 

87.  Apprehension. 

88.  Command. 

89.  Coercion. 

90.  Ordinary  Process. 

91.  Arrest. 

92.  Seizure. 

93.  Demand. 

94.  Distraint. 

95.  Conclusion. 


CHAPTER  XI. 

THE   LEGISLATION   OF   THE   ADMINISTRATION. 

96.  Introduction. 

97.  Written  Rules. 

98.  Scope. 


TABLE  OF  CONTENTS. 


99. 

Extent. 

100. 

Unwritten  Rules, 

101. 

Validity. 

102. 

Propriety. 

103. 

Conclusion. 

CHAPTER  XII. 

THE  REGULATION  OF  THE  ADMINISTRATION. 

104.  Introduction. 

105.  Conflict  with  Legislation. 

106.  Repugnancy. 

107.  Limitation. 

108.  Conflict  with   Administration. 

109.  Characteristic. 

110.  Situation. 

111.  Conclusion. 


CHAPTER  XIII. 

THE   ADJUDICATION   OF   THE   ADMINISTRATION 

112.  Introduction. 

113.  Jurisdiction  in  Adjudication. 

114.  Exclusive. 

115.  Final. 

116.  Adjudication  in  Controversies. 

117.  Concurrent. 

118.  Alternative. 

119.  Conclusion. 


CHAPTER  XIV. 

THE  PROCESSES  OF  THE  ADMINISTRATION. 

120.  Introduction. 

121.  Ex  Parte  Proceedings. 


TABLE  OF  CONTENTS. 


122.  Claim. 

123.  Allowance. 

124.  Collection. 

125.  Inter  Partes  Proceedings. 
112G.  Contest. 

L27.  Protest. 

128.  Remission. 

129.  Conclusion. 


CHAPTER  XV. 

THE  JURISDICTION  OF  THE  ADMINISTRATION. 

§  130.  Introduction. 

131.  Scope  of  Jurisdiction. 

132.  Administration  by  Execution. 

133.  Administration  by  Legislation. 

134.  Administration  by  Adjudication. 

135.  Extent  of  Jurisdiction. 

136.  Conclusion. 


APPENDIX. 

Page. 

A.  Regulations  Relating  to  Army  and  Navy  Pensions  for  the 

Guidance  of  Claimants  and  Attorneys 373 

B.  Rules  of  Practice  in  Cases  Before  the  Accounting  Officers 

of  the  United  States  in  the  Division  of  the  Comptroller.  . .   392 

C.  Customs  Administrative  Act  of  June  10,  1890,  as  Amended 

by  Act  of  July  24,  1897 416 

D.  Rules  of  Practice  in  the  United  States  Patent  Office 444 

E.  Rules  of  Practice  in  Cases  Before  the  United  States  District 

Land  Offices,  the  General  Land  Office,  and  the  Department 

of  the  Interior 523 

F.  Laws  Applicable  to  the  Administration  of  the  Internal  Rev- 

enue Laws 557 


ADMINISTRATIVE  LAW. 


CHAPTER  I. 


THE   LAW  OF  THE  ADMINISTRATION. 

§  1.  Introduction. 

2.  Law  for  Administration. 

3.  External  Law. 

4.  Internal  Law. 

5.  Result  for  Administration. 

6.  Conclusion. 

?5  1.    Introduction. 

It  is  intended  in  these  lectures  to  deal  with  the  law 
governing  the  execution  of  law  by  public  officers  so  far 
as  such  a  law  has  a  place  in  our  system  of  law.  The  at- 
tempt will  be  to  discover  the  principal  rules  of  law  that 
govern  in  administration;  the  object  of  which  is  to 
arrive  at  some  theory  as  to  the  nature  of  this  adminis- 
trative law  which  regulates  the  rights  and  duties  of 
officials  in  their  various  relations.  Administrative  law,, 
then,  is  that  body  of  rules  which  defines  the  authority 
and  the  responsibility  of  that  department  of  the  gov- 
ernment which  is  charged  with  the  enforcement  of  the 
law.  At  all  events,  the  experiment  in  these  lectures  will 
be  to  treat  these  problems  of  administration  as  matters 
of  law. 

Mil  Dicky  in  his  admirable  book  The  Law  of  the  Con- 
stitution,  which    is   already   a    classic    among    treatises 

(1) 

Adm.  Law — 1. 


g  !  ADMINISTRATIVE  LAW.  [Ch.  1 

upon  political  institutions,  says  iu  chapter  12  :  In  many 
countries,  servants  of  the  state  are  in  their  official  ca- 
pacity to  a  -real  extent  protected  from  the  ordinary 
law  of  tli«'  Land,  exempted  from  the  jurisdiction  of  ordi- 
nary tribunals,  and  subject  to  official  law  administered 
).\  official  bodies.  This  scheme  of  so-called  administra- 
tive law  is  opposed  to  all  English  ideas.  The  words  Ad- 
ministrative Law  are  unknown  to  English  judges  and 
counsel,  and  are  in  themselves  hardly  intelligible  with- 
out further  explanation.  This  absence  in  our  language 
is  significant.  It  arises  from  non-recognition  of  the 
thing  itself.  In  England  and  in  the  countries  which 
like  the  United  States  derive  their  civilization  from 
English  sources,  the  system  of  administrative  law  and 
the  very  principles  upon  which  it  rests  are  in  truth  un- 
known. When  the  highest  authority  declares  in  so  ex- 
plicit a  manner  that  administrative  law  is  impossible 
under  the  common  law  system,  at  all  events  one  thing 
can  be  promised  in  this  course  of  lectures — novelty  of 
subject. 

It  is  the  more  remarkable  that  administrative  law  has 
qoI  been  conceived  of  as  a  department  of  our  public  law 
when  it  is  pari  of  the  legal  system  of  every  country  of 
continental  Europe.  Droit  administratif  is  under  every 
country  of  the  civil  law  a  well  ascertained  branch  of 
public  law.  Indeed  foreign  writers  cannot  imagine  or- 
derly government  without  administrative  law.  They 
assume  it  as  indispensable  that  the  administration 
should  have  its  own  body  of  law  to  govern  in  all  its  legal 
relations.  The  character  of  these  administrative  laws, 
they  say,  musl  be  different  from  the  private  laws  which 


Ch.  1]  LAW  OF  THE  ADMINISTRATION.  §  1 

govern  between  individuals.  For  the  interest  of  the 
state  is  a  determining  factor.  All  dealings,  in  short,  in 
which  the  rights  of  an  individual  in  reference  to  the 
state  or  to  administrative  officers  come  in  question — as 
also  the  process  whereby  such  rights  and  liabilities  are 
to  be  enforced — come  within  the  contentieux  adminis- 
tratifs.  And  this  is  necessary,  says  M.  Vivien  in  his 
Droit  Administratis  Chapter  1:  There  are  required 
different  principles,  different  procedure,  different  train- 
ing of  judges,  special  knowledge  and  experience, — in 
fine,  administrative  justice  can  only  be  obtained  by  ad- 
ministrative law,  and  by  the  employment  of  the  admin- 
istrative process. 

Xow,  political  science  is  a  universal  science.  How- 
ever diverse  in  its  manifestations,  governmental  power 
is  the  same  in  last  analysis.  Accordingly,  there  is  no 
power  exercised  in  amr  government  which  is  not  to  be 
found  in  some  form  or  other  in  every  government.  In 
every  government  there  must  be  a  department  charged 
with  the  enforcement  of  the  law.  In  the  law  of  every 
state,  therefore,  there  must  be  a  body  of  rules  in  rela- 
tion to  the  action  of  that  department.  In  that  sense  at 
least,  there  must  be  an  administrative  law  in  the  law  of 
every  state.  In  one  state  the  administrative  law  may 
allow  a  large  sphere  of  action  to  the  executive  depart- 
ment; in  another  state  that  law  may  allow  a  small 
sphere  of  action  to  that  department.  And  that  is  indeed 
the  fact;  in  the  civil  law  system  the  law  governing  ad- 
ministration has  a  superior  position  to  the  law  of  the 
land;  in  the  common  law  system  the  law  governing  ad- 
ministration has  an  inferior  position  to  the  law  of  the 
land.     So  wide  is  this  distinction  that  it  would  be  an 

(3) 


e  2  ADMINISTRATIVE  LAW.  [Ch.  1 

impossible  thing  to  import  the  civil  law  forms  to  classi- 
fy the  common  law  facts. 

At  the  same  time,  since  there  is  an  administration 
which  proceeds  in  accordance  with  a  law  in  the  common 
law  system  as  well  as  in  the  civil  law  system,  it  ought  to 
be  obvious  that  administrative  law  has  a  place  in  the 
jurisprudence  of  every  state.  In  this  broad  statement 
of  the  problem  it  is  obvious  that  there  is  an  administra- 
tive law  in  the  United  States.  That  law  which  governs 
the  administration  of  law  by  public  officers  is  the  sub- 
ject of  these  lectures. 
?  2.    Law  for  administration. 

In  a  discussion  of  administrative  law  there  is  a  first 
distinction  to  be  taken  which  may  lie  marked  by  the 
phrases  the  external  law  and  the  internal  law.  Ex- 
ternal administrative  law  deals  with  the  relations  of  the 
administration  or  of  officers  with  citizens.  I  menial 
administrative  law  is  concerned  with  the  relations 
of  officers  with  each  other,  or  with  the  administra- 
tion. And  yet  in  a  way  both  of  these  branches  of  this 
law  are  involved  in  any  motion  of  the  administration, 
since  the  administration  cannot  act  upon  an  external 
matter  without  internal  direction.  Together,  the  ex- 
ternal law  and  the  internal  law  make  up  the  law  of  ad- 
ministration. 

To  such  extent  is  this  interaction  of  the  external  law 
upon  the  internal  law  and  of  the  internal  law  upon  the 
external  law  the  fact,  that  cases  arise  where  there  is  an 
apparent  conflict  between  these  laws.  Suppose  the  su- 
perior officer  commands  the  inferior  officer  to  do  a  cer- 
tain act — it  is  the  internal  law.  that  every  order  must 
be  obeyed.  But  suppose  that  the  external  law  di- 
(4) 


Ch.  1]  LAW  OF  THE  ADMINISTRATION.  g  2 

rects  the  officer  not  to  do  that  act — it  is  the  external 
law  that  every  law  must  be  obeyed.  Now,  how  can  this 
inferior  officer  obey  both  the  internal  law  and  the  ex- 
ternal law  when  the  one  commands  action,  and  the  other 
requires  inaction,  as  to  the  same  subject  matter?  There 
must  be  some  solution  to  allow  the  officer  to  escape  from 
the  horns  of  such  a  dilemma. 

That  is  the  question  where  the  law  of  the  land  com- 
mands and  the  law  of  the  administration  demands — 
which?  There  are  the  two  possibilities.  As  a  first  in- 
quiry let  it  be  asked  whether  in  such  a  conflict  the  order 
of  the  superior  officer  will  prevail.  A  case  that  in- 
volves that  is  Hendricks  v.  Gonzales,  <57  Fed.  351  I  1895  I. 
This  was  an  action  by  a  charterer  of  a  vessel  against  the 
Collector  of  the  Port  of  New  York  to  recover  damages 
for  the  detention  of  the  steamer  by  refusal  to  give  clear- 
ance papers.  The  facts  brought  to  the  attention  of  the 
collector  were  that  the  cargo  consisted  wholly  of  arms 
and  munitions  of  war;  and  that  she  was  bound  to  a  port 
near  the  base  of  operations  of  the  Venezuelan  insur- 
gents. Upon  report  to  Washington,  the  Secretary  of 
Treasury  ordered  the  vessel  to  be  held.  The  judge  sub- 
mitted to  the  jury  the  question  of  fact  whether  the  de- 
fendant had  reasonable  cause  to  believe  that  the  vessel 
was  intended  to  be  used  in  the  hostilities;  if  he  had,  in 
fact,  he  was  entitled  to  a  verdict.  Error  was  assigned 
because  of  the  refusal  of  the  trial  judge  to  rule  that  the 
defendant  was  exonerated  from  liability  for  his  acts  by 
the  instructions  of  the  Secretary  of  Treasury. 

Wallace,  the  Circuit  Judge,  stated  the  judgment 
tints:  The  questions  presented  by  the  assignments  of 
error  seem  free  from  doubt.     The  plaintiff  having  com- 

(5) 


g  ->  ADMINISTRATIVE  LAW.  [Ch.  1 

plied  with  the  conditions  entitling  him  to  clearance,  it 
was  the  duty  of  the  defendant  as  collector  of  the  port, 
to  granl  a  clearance  for  the  vessel  and  her  cargo,  unless 
he  was  justified  in  refusing  to  do  so  by  some  other  statu- 
tory authority.  Neither  the  Secretary  of  the  Treasury 
nor  the  President  could  nullify  the  statute,  and  though 
the  defendant  may  have  thought  himself  bound  to  obey 
the  instructions  of  the  former,  his  mistaken  sense  of 
duty  could  not  justify  his  refusal  of  the  clearance,  and 
these  instructions  afforded  him  no  protection  unless 
they  were  authorized  in  law. 

One  feels  a  conflict  of  rights  and  duties  in  this  deci- 
sion. On  the  one  hand  the  collector  is  bound  by  the  in- 
ternal law  of  administration  to  obey  his  superior  in  the 
administration;  on  the  other  hand  the  collector  is  bound 
by  the  external  law  of  the  land  to  the  shipmaster.  And 
in  that  conflict  the  law  of  the  land  is  held  the  superior 
law.  This  is  an  illustration  of  the  supremacy  of  the  law 
of  the  land;  no  test  shows  more  how  the  law  of  the  land 
dominates  the  situation  in  administration  in  countries 
under  the  common  law.  The  order  of  the  superior  is 
qo  defense  because  it  is  not  recognized  as  of  any  value 
when  there  is  positive  law  of  the  land  to  the  contrary. 
The  law  of  the  land — the  external  law — overrules  the 
law  of  the  administration — the  internal  law. 

This  solution  is  for  the  extreme  case  where  the  duty 
to  be  performed  is  purely  ministerial.  If  in  the  duty 
to  1»-  performed  something  is  left  to  discretion  this  solu- 
tion is  reversed.  In  any  estimate  of  the  situation  a  case 
like  In  re  Fair,  100  Fed.  149  (1900),  must  be  stated  in 
order  that  any  extreme  doctrine  may  be  qualified.  One 
.Morgan,  a  prisoner  in  a  United  States  military  prison, 
(6) 


(Jh.  1]  LAW  OF  THE  ADMINISTRATION.  §  2 

made  his  escape  from  the  fort.  Fair,  a  corporal,  and 
Joe-kins,  a  private,  who  were  on  guard  duty,  were  called 
upon  to  pursue  the  prisoner.  The  order  as  given  was 
in  substance  as  follows:  Pursue  the  prisoner,  if  you 
sight  him  summon  him  twice;  and  if  he  docs  not  halt 
fire  upon  him,  and  fire  to  hit  him.  About  dusk  they 
halted  Morgan  on  a  highway;  he  turned  and  ran  across 
a  field;  they  followed  close  after.  Fair  gave  the  order 
to  fire  and  Morgan  fell  mortally  wounded.  For  the  kill- 
ing of  Morgan,  Fair  and  Jockins  were  tried  by  court- 
martial,  and  found  not  guilty.  Next  they  were  indicted 
for  manslaughter  in  the  Nebraska  Court. 

Munger,  the  District  Judge,  ordered  their  release: 
The  law  is  that  an  order  given  by  an  officer  to  his  pri- 
vate, which  does  not  expressly  and  clearly  show  on  its 
face  its  illegality,  the  soldier  is  bound  to  obey;  and  such 
order  is  his  full  protection.  The  first  duty  of  a  soldier 
is  obedience,  and  without  this  there  can  be  neither  dis- 
cipline nor  efficiency  in  an  army.  If  every  subordinate 
officer  and  soldier  were  at  liberty  to  question  the  legal- 
ity of  the  orders  of  the  commander,  and  obey  them  or 
not  as  he  may  consider  them  valid  or  invalid,  the 
precious  moment  for  action  would  be  wasted.  Its  law 
is  that  of  obedience.  No  question  can  be  left  open  of 
the  right  to  command  in  the  officer,  or  of  duty  of  obedi- 
ence in  the  soldier.  While  I  do  not  say  that  the  order 
given  by  Sergeant  Simpson  to  the  petitioners  was  in  all 
particulars  a  lawful  order,  I  do  say  that  the  illegality 
of  the  order,  if  illegal  it  was,  was  not  so  much  so  as  to 
be  apparent  and  palpable  to  the  commonest  understand- 
ing. If,  then,  the  petitioners  acted  under  such  order  in 
good  faith,  they  arc  not  liable  to  prosecution. 

(7) 


I  2  ADMINISTRATIVE  LAW.  [Ch.   1 

This  decision  certainly  commends  itself  to  common 
sense.  The  position  of  the  soldier  is  so  hard  that  it 
cannot  be  possible.  Otherwise  this  often  would  be  the 
alternative  for  the  soldier:  if  he  refused  to  obey  a  rea- 
sonable order — to  be  shot  for  disobedience;  if  he  killed 
in  pursuance  of  that  order — to  be  hung  for  murder.  It 
may  be  urged  that  this  is  always  more  or  less  the  situa- 
tion in  all  administration  under  the  common  law  sys- 
tem, only  the  present  case  is  more  dramatic  than  the 
ordinary  case.  There  is,  however,  distinction  between 
this  case  and  the  former  case.  In  the  first  case  the 
officer  exceeded  the  discretion  vested  in  him  in  his  ac- 
tion; in  the  second  case  the  officer  acted  within  the  dis- 
cretion vested  in  him.    That  makes  the  whole  difference. 

In  crucial  cases  there  will  be  this  antinomy  between 
conflicting  duties.  If  it  be  granted  that  when  there  is 
a  ministerial  duty  to  perform  a  certain  act  the  law  of 
the  land  must  be  obeyed,  in  that  case  there  is  no  conflict. 
And  if  it  be  granted  that  where  there  is  a  discretionary 
duty  to  perform  a  certain  act  the  law  of  the  administra- 
lion  should  be  obeyed,  in  that  case  also  there  is  no  con- 
flict. That  is  the  legal  solution  of  this  difficulty  then. 
In  the  first  case  there  was  no  place  for  the  internal  law 
left  by  the  external  law;  in  the  second  there  was  a  scope 
for  the  internal  law  within  the  external  law.1 

i  Law  for  Administration. — Rogers  v.  Dutt,  13  Moo.  P.  C.  236; 
Raleigh  v.  Goschen  [1898]  1  Ch.  73:  Mitchell  v.  Harmony,  13  How. 
115;  United  States  v.  Lee,  106  U.S.  196;  Coblens  v.  Abel,  Woolworth 
293;  Hendricks  v.  Gonzales,  67  Fed.  351;  Eslava  v.  Jones.  83  Ala. 
139;  Lee  v.  Huff,  61  Ark.  494;  Harpending  v.  Haight,  39  Cal.  189; 
Land  Co.  v.  Routt.  17  Colo.  156;  Raymond  v.  Fish,  51  Conn.  80:  Dow- 
ling  v.  Bowden,  25  Fla.  712;  State  v.  Bell,  9  Ga.  334;  Strickfaden 
v.  Zipprick.  49  111.  286;  Governor  v.  Nelson,  6  Ind.  496;  McCord  v. 
High,   24   la.    336;    State   v.   Francis,   23   Kan.   495;    Lecourt   v    Gas- 

(8) 


Ch.  1]  LAW  OF  THE  ADMINISTRATION.  g  3 

'4  3-    External  Law. 

The  external  administrative  law  as  defined  deals  with 
the  relations  of  tin*  administration,  and  of  officials,  with 
citizens.  External  administrative  law  is  thus  concerned 
with  almost  everything  which  the  government  asks  of 
the  citizens;  and  it  is  concerned  with  almost  everything 
which  citizens  ask  of  the  government.  These  sub- 
jects in  the  large,  form  the  principal  subject  matter  of 
these  lectures.  Since  in  this  inquiry  is  involved  the  ex- 
tent of  the  power  of  the  administration,  all  the  law  as  to 
the  authority  of  officers  is  brought  into  the  discussion. 
And  since  in  the  same  inquiry  is  involved  the  limitation 
of  the  administration,  all  the  law  as  to  the  responsibility 
of  officers  is  brought  in  issue. 

There  is  one  fundamental  question:  Is  the  adminis- 
tration in  its  relations  with  citizens  subject  to  the  same 
rules  of  law  as  govern  the  relations  of  citizens  among 
themselves?  it  has  been  remarked  that  under  the  for- 
eign system  of  administrative  law  a  special  law  governs 
relations  with  the  administration,  while  in  our  system 
of  administrative  law  it  has  been  supposed  that  there  is 
oik1  law  in  the  land  which  governs  public  officers  and 
private  citizens  alike.  It  is  very  simple — this  common 
law  view — that  action  in  accordance  with  legal  authori- 
zation is  legal  and  the  official  so  acting  will  always  be 

ter,  50  La.  Ann.  521;  Harwood  v.  Siphers.  70  Me.  464;  Magruder  v. 
Swann,  25  Md.  173;  Tellefsen  v.  Fee,  168  Mass.  188;  Pawlowski  v. 
Jenks,  115  Mich.  275;  Hines  v.  Chambers,  29  Minn.  7:  Newman  v. 
Elam,  30  Miss.  507;  Chouteau  v.  Rowse.  56  Mo.  65;  State  v.  Krutt- 
schnitt,  4  Nev.  178;  Ela  v.  Shepard,  32  N.  H.  277;  Hann  v.  Lloyd. 
50  N.  J.  Law,  1;  Olmsted  v.  Dennis,  77  N.  Y.  378;  Board  of  Education 
v.  Com'rs  of  Bladen,  113  N.  C.  379;  State  v.  Auditor,  43  Ohio  St.  311; 
Williams  v.  Schmidt.  14  Ore.  470;  Yealy  v.  Fink,  43  Pa.  St.  212; 
Randall  v.  Wethersell.  2  R.  I.  120;  McKinney  v.  Robinson.  84  Tex. 
489;  Brown  v.  Mason,  40  Vt.  157;  Board  of  Public  Works  v.  Gannt, 
76  Va.  455;  Frazier  v.  Turner,  76  Wis.  562. 

(9) 


<   3  ADMINISTRATIVE  LAW.  [Ch.    1 

justified;  and  that  action  without  warrant  of  law  is  ille- 
gal, and  the  official  so  acting  will  always  be  considered  a 
private  wrong-doer.  Without  doubt  this  is  the  gen- 
eral rule  of  the  common  law  governing  the  relations  of 
officials  with  citizens.  This  must  be,  therefore,  the  first 
rule  df  external  administrative  law. 

A  strong  illustration  of  the  effect  of  this  rule  that  the 
circumstance  that  the  act  done  purports  to  be  under  the 
authority  of  the  government  makes  out  no  justification 
whatever  is  United  States  v.  Lee,  106  V.  S.  196  I  1882  i. 
This  was  an  action  commenced  by  Lee  against  Kaufman 
and  others  for  ejectment  of  the  Arlington  Estate.  Dur- 
ing the  war  the  Lee  family  had  been  dispossessed  by  pro- 
ceedings which  the  Lower  Court  held  void.  At  that 
stage  of  the  ejectment  process  the  Attorney-General  riled 
in  the  case  a  suggestion  that  these  defendants  held  the 
premises  as  public  officers  acting  under  the  direction  of 
the  President  of  the  United  States;  and  that  the  suit 
ought  not  to  be  maintained.  The  plaintiff  demurred  to 
this  suggestion  upon  the  ground  that  the  action  was 
against  the  defendants  as  private  wrong-doers. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court : 
What  is  the  right  as  established  by  the  verdict  of  the 
jury  in  this  case?  It  is  the  right  to  the  possession  of 
the  homestead  of  the  plaintiff.  A  right  to  recover  that 
which  lias  been  taken  from  him  by  force  and  violence 
and  detained  by  the  strong  hand.  This  right  being 
clearly  established  we  are  told  that  the  court  can  pro- 
ceed no  further  because  it  appears  that  certain  military 
officers  acting  under  orders  of  the  President  have  seized 
this  estate  and  converted  one  part  of  it  into  a  military 
fort,  and  another  into  a  cemeterv.  It  is  not  pretended  as 
(10) 


Ch.  1]  LAW  OF  THE  ADMINISTRATION.  §  3 

the  case  now  stands  that  the  President  had  any  lawful 
authority  to  do  this  or  that  the  legislative  body  could  give 
him  any  such  authority  except  upon  the  payment  of  just 
compensation.  The  defense  stands  here  solely  upon  the 
absolute  immunity  from  judicial  inquiry  of  every  one 
who  asserts  authority  from  the  executive  branch  of  the 
government,  however  clear  it  may  be  that  the  execu- 
tive possessed  no  such  power.  No  man  in  this  country  is 
so  high  that  he  is  above  the  law.  Xo  officer  of  the  law 
may  set  that  law  at  defiance  with  impunity.  All  officers 
of  the  government  from  the  highest  to  the  lowest  are 
creatures  of  the  law  and  are  bound  to  obey  it. 

This  is  the  negative  side  of  the  rule,  the  responsibility 
of  the  administration  to  the  external  law  of  the  land. 
The  rule  has  a  positive  side,  the  authority  of  adminis- 
tration from  the  external  law  of  the  land.  This  depends 
upon  the  truism  that  all  action  by  an  officer  in  pursu- 
ance of  law  is  legal ;  which  has  this  further  application, 
which  is  of  the  greatest  importance :  that  all  official  ac- 
tion in  pursuance  of  discretion  vested  in  the  officer  by 
law  is  action  in  accordance  with  laws  in  whatever  way 
that  discretion  may  be  exercised.  In  such  action  an 
officer  cannot  be  in  the  position  of  a  wrong-doer  what- 
ever it  be.  Without  doubt  this  rule  is  of  great  conse- 
quence; it  is,  indeed,  at  the  foundation  of  administrative 
law  in  a  country  subject  to  the  common  law  system. 

A  strong  illustration  of  this  rule  that  the  officer  can- 
not be  responsible  for  any  action  done  in  pursuance  of 
discretion  vested  in  him  by  law  whatever  that  action 
may  be  is  Seymour  v.  United  States,  2  App.  1).  C.  240 
(1894).  This  was  an  application  for  mandamus  by  the 
State  against  the  Commissioner  of  Patents  to  compel 

(11) 


S    6 


ADMINISTRATIVE  LAW.  [Ch.    1 


the  registration  of  a  trade  mark  of  the  relator.  It  ap- 
peared that  under  its  dispensary  act  that  state  was  en- 
gaged in  the  manufacture  and  sale  of  intoxicating; 
liquors.  The  commissioner  found  that  the  state  had  no 
authorized  trade  in  liquors  outside  of  its  own  limits 
and  had  not  the  use  of  a  trade  mark  in  interstate  com- 
merce, and  that  therefore  the  application  should  be  de- 
nied. The  state  thereupon  went  to  the  courts  for  this 
mandamus,  which  was  promptly  refused  it. 

Mr.  Justice  Siiepard  said:  To  the  judiciary  depart- 
ment is  intrusted  the  interpretation  of  the  laws,  the  de- 
termination of  rights,  and  the  application  of  remedies, 
and  in  this  regard  it  is  sometimes  difficult  for  the  courts 
to  properly  appreciate  the  fact  that  the  executive  de- 
partment is  charged  with  perfectly  independent  duties 
which  require  the  ascertainment  of  facts,  involve  the  in- 
terpretation of  laws,  and  in  many  respeets  call  for  the 
exercise  of  judgment  and  discretion;  and  this  independ- 
ence is  so  complete  that  no  matter  how  gross  an  error 
may  be  committed  in  the  execution  of  these  duties,  the 
courts  are  nevertheless  powerless  to  interfere.  Private 
interests  may  suffer  iu  instances,  and  rights  may  some- 
times be  denied;  but  these  alone  do  not  authorize  the 
interference  of  the  courts  with  the  duties  of  executive 
officers.  Greater  evils  could  not  exist  under  our  sys- 
tem of  government  than  would  follow  the  usurpation  by 
the  judiciary  of  powers  not  intrusted  to  them. 

The  position  of  internal  administrative  law  under  our 
system  is  to  be  found  in  some  way  within  the  law  of 
i  he  land.  The  exterior  rules  make  the  officers  of  the  ad- 
ministration liable  if  anything-  is  done  by  them  without 
authority  which  can  justify  it,  somewhere  to  be  found 
(12) 


Ch.  1]  LAW  OF  THE  ADMINISTRATION.  §  J 

in  the  law  of  the  land  itself.  If  proper  administra- 
tion cannot  therefore  exceed  these  limitations,  how  can 
any  administration  at  all  go  on  under  such  restrictions? 
Even  at  so  early  a  stage  of  this  inquiry  it  may  be  well 
to  put  forward  the  working  hypothesis  upon  which  these 
lectures  are  based.  Cases  must  be  put  forward  to  estab- 
lish it;  other  cases  to  develop  it;  others  still  to  apply  it. 
In  the  usual  conditions  of  administration  in  most 
jurisdictions  there  will  be  found  an  external  law  gov- 
erning administration  which  both  restricts  and  enables. 
In  so  far  as  it  restricts,  it  must  be  respected;  in  so  far 
as  it  enables,  it  must  be  observed.  If  there  is  one  thing 
that  is  characteristic  of  the  law  of  the  land  it  is  its  rigid- 
ity; the  external  law,  then,  is  from  first  to  last  a  fixed 
obligation,  the  same  in  one  case  as  in  another,  whatever 
the  stress.  And  therein  the  external  law  differs  from  the 
internal  law.  If  there  is  one  thing  that  is  characteristic 
of  the  law  of  administration  it  is  its  elasticity;  the  in- 
ternal law,  then,  is  from  first  to  last  an  unfixed  obligation, 
one  way  in  one  vn^(\  another  in  another,  as  expediency 
dictates.2 

2  External  Law. — Mostyn  v.  Fabrigas,  Cowp.  161;  Gidley  v. 
Palmerston,  3  Brod.  &  B.  275;  Kearney  v.  Creelman.  16  N.  S.  228; 
Baker  v.  Ranney,  12  Grant  Ch.  228;  Gaines  v.  Thompson,  7  Wall.  347; 
Noble  v.  Logging  R.  R..  147  U.  S.  165;  Decatur  v.  Paulding,  14  Pet. 
497;  Ex  Parte  Echols,  39  Ala.  698;  McClure  v.  Hill,  36  Ark.  268; 
Ex  Parte  Tinkum,  54  Cal.  201;  State  v.  Staub,  61  Conn.  553:  Den- 
ver v.  Dean,  10  Colo.  375;  Seymour  v.  United  States,  2  App.  D.  C. 
240;  State  v.  Drew,  17  Fla.  67;  Collins  v.  McDaniel,  66  Ga.  203; 
People  v.  Kent,  160  111.  655;  State  v.  Snodgrass,  98  Ind.  546;  McCord 
v.  High,  24  la.  336;  Bridge  Co.  v.  County  Com'rs,  10  Kan.  326; 
Dickens  v.  Cemetery  Co.,  93  Ky.  385;  State  v.  Wrotnowski,  17  La. 
Ann.  156;  Davis  v.  County  Com'rs,  63  Me.  396;  Magruder  v.  Swann,  25 
Md.  173:  Nowell  v.  Wright,  3  Allen  166;  People  v.  Governor,  29 
.Mich.  320;  State  v.  Coon,  14  Minn.  456;  Swan  v.  Gray,  44  Miss. 
393;  State  v.  McGrath.  91  Mo.  386;  Merritt  v.  McNally,   14  Mont.  228; 

(13) 


^4  ADMINISTRATIVE  LAW.  [Ch.l 

I  4.    Internal  Law. 

Internal  administrative  law  as  defined  deals  with  the 
relations  of  the  officer  in  the  administration  to  each 
other,  and  to  the  administration  itself.  The  position  of 
the  officer  in  its  organization  and  his  function  in  its 
action  is  the  object  of  this  inquiry.  This  is  the  real  sub- 
ject. The  administration  is  to  be  studied  as  an  adminis- 
tration. What  is  the  theory  of  administration — by  what 
process  does  an  administration  act?  "What  is  the  prac- 
tice of  administration — by  what  methods  (hies  an  admin- 
istration act?  These  are  the  questions  to  which  these 
lectures  are  devoted  the  most  of  the  time.  In  a  word, 
the  chief  point  in  the  administration  that  the  internal 
law  is  concerned  with  is  the  fact  that  many  officers  are 
bound  together  in  action. 

The  internal  law  governs  the  processes  by  which  the 
laws  in  general  are  carried  into  execution  by  the  officers 
of  the  administration.  These  processes  are  not  all  alike. 
The  execution  of  law  requires  various  methods  at  vari- 
ous stages  of  the  enforcement.  It  may  be  well  even  at 
the  outset  to  give  some  illustrations  of  the  processes  of 
the  administration  in  order  that  the  nature  of  the  in- 
ternal law  that  governs  all  of  these  methods  may  be  seen. 
Administration  seems  to  have  three  stages :  first,  the 
law  is  prepared;  then  the  law  is  applied;  then  the  law 
is  enforced.     It  is,  however,  all  one  process. 

The  fundamental  condition  is  that  in  administration 

Miller  v.  Roby,  9  Neb.  471;  Humboldt  Co.  v.  County  Com'rs,  6  Nev. 
30;  Orr  v.  Quimby,  54  N.  H.  590;  State  v.  Perrine,  34  N.  J.  Law.  254; 
People  v.  Chapin,  104  N.  Y.  96;  Holt  v.  McLean,  75  N.  C.  347;  State 
v.  Moore,  42  Ohio  St.  103;  Commonwealth  v.  Martin,  170  Pa.  St.  118; 
Mauran  v.  Smith,  8  R.  I.  192;  State  v.  County  Com'rs,  28  S.  C.  258; 
State  v.  Ruth,  9  S.  D.  84;  Meadows  v.  Nesbit,  12  Lea.  489;  Chalk  v. 
Darden,  47  Tex.  438;  Richards  v.  Wheeler.  2  Aik.  369;  McCullough 
v.  Hunter,  90  Va.  699;    State  v.  Doyle,  40  Wis.  204. 


£h      -m  LAW  OF  THE  ADMINISTRATION.  §   4 

many  officers  are  found  together.  The  purpose  of  the 
law  of  administration  is  obvious,  then ;  it  is  the  science 
of  common  action.  All  the  rules  of  the  internal  adminis- 
trative  law,  then,  have  this  basis  in  so  far  as  there  are 
rules  that  dictate  the  methods  to  be  used  in  administra- 
tion, this  unifying  principle — to  bring  order  into  the 
course  of  the  execution  of  the  law.  All  the  processes  of 
administration  so  far  as  they  proceed  according  to  the 
internal  law  of  administration  have  this  point  of  de- 
parture— common  action.  This  is  then  the  central  point 
in  these  lectures  to  show  this  law  of  the  administration — 
the  totality  of  officers ;  that  is  the  principal  thing.  Only 
by  way  of  illustration  is  the  law  of  officers — the  single 
officer — brought  into  the  discussion.  Two  cases  may 
illustrate  the  object  in  view  in  these  lectures.  One  signifi- 
cant case  upon  the  processes  of  administration  is  Indian 
Regulations,  3  Compt.  Dec.  218  (1896).  The  facts  were 
these:  Section  65  of  the  regulations  promulgated  by  the 
Secretary  of  Interior  for  the  Indian  Office  provided  that 
all  authorities  to  purchase  in  the  open  market  expire  at 
the  end  of  the  fiscal  year.  In  this  particular  case  a 
written  authority  to  purchase  flags  in  amount  not  ex- 
ceeding $500,  but  without  other  limitation,  was  given 
by  the  Secretary  of  Interior  to  the  Commissioner  of  In- 
dian Affairs.  Purchases  were  made  under  this  author- 
ity after  the  fiscal  year  in  which  if  was  granted. 

The  then  Comptroller,  Bowers,  stated  the  internal  law 
as  to  the  methods  of  administration  in  this  manner:  To 
sustain  these  payments  it  is  necessary  to  hold  that  the 
Secretary  at  the  time  of  issuing  the  order  determined 
to  waive  this  regulation  as  not  advisable  in  connection 
with  the  purchase  of  these  flags.    There  can  be  no  ques- 

(15) 


g  4  ADMINISTRATIVE  LAW.  (Jh.   Ij 

tion  of  his  authority  to  waive  such  a  regulation,  the 
same  having  been  promulgated  by  him,  and  being  at 
any  time  subject  to  his  amendment,  waiver,  or  abroga- 
tion. It  is  equally  true  that  such  a  regulation  may  be 
waived  by  subsequent  specific  approval  of  a  transaction 
by  the  Secretary  of  Interior.  But  in  the  absence  of  some 
action  of  the  Secretary  these  formal  printed  regulations 
are  binding  upon  all  of  the  subordinate  officers  of  his 
department. 

This  case  is  of  a  distinct  importance  in  exposing  the 
true  nature  of  the  internal  law  of  administration.  The 
regulation  was  internal  law  of  the  administration  so  that 
it  would  bind  the  inferior  of  the  officer  who  made  it. 
Yet  it  does  not  bind  the  officer  that  made  ir  himself — 
why?  Because  the  internal  law  is  all  based  upon  the 
discretion  of  a  given  officer;  if  lie  in  bis  discretion  pro- 
mulgates a  regulation  he  may  in  bis  discretion  waive  that 
regulation.  The  internal  law  of  the  administration  is 
then  no  more  than  the  usual  order  of  the  exercise  of  that 
discretion  in  the  ordinary  case;  in  the  extraordinary 
case  direct  action  can  betaken  not  withstanding. 

A  second  case — a  fundamental  one — upon  the  methods 
in  administration  is  Wilcox  v.  Jackson.  13  Pet.  498 
(1839).  This  was  an  ejectment  brought  upon  a  patent 
for  a  tract  of  land  in  Cook  County,  Illinois,  a  fractional 
section  embracing  the  military  post  called  Fort  Dear- 
born, at  the  time  of  the  institution  of  the  suit  in  the 
possession  of  the  defendant  as  commanding  officer.  The 
land  in  question  had  been  in  fact  reserved  land  held  out 
from  pre-emption  by  virtue  of  a  provision  of  statute  that 
land  reserved  from  sale  by  order  of  the  President  should 
not  be  patented.  In  this  particular  case  the  plot  had 
(16) 


(jl1>   i]  LAW  OF  THE  ADMINISTRATION.  <  4 

been  reserved  by  the  Commissioner  of  the  Land  Office 
under  direction  of  the  Secretary  of  War.  The  claimant 
therefore  contended  that  the  land  was  not  in  truth  re- 
served at  the  time  his  patent  issued  from  the  Land  Office, 
since  there  had  been  no  order  by  the  President  himself. 

Mr.  Justice  Barbour  explained  in  his  .opinion  the  in- 
ternal law  as  to  action  in  the  execution  of  the  law:  At 
the  request  of  the  Secretary  of  War,  the  Commissioner 
of  the  General  Land  Office  in  182t  coloured  and  marked 
upon  the  map  this  very  section,  as  reserved  for  military 
purposes,  and  directed  it  to  be  reserved  from  sale  for 
those  purposes.  We  consider  this  as  having  been  done 
by  authority  of  law;  for  amongst  other  provisions  in  the 
act  of  1830  all  lands  arc  exempted  from  pre-emption 
which  are  reserved  from  sale  by  order  of  the  President. 
Now  although  the  immediate  agent  in  requiring  this 
reservation  was  the  Secretary  of  War.  yet  we  feel 
justified  in  presuming  that  it  was  done  by  approbation 
and  direction  of  the  President.  The  President  speaks 
and  acts  through  the  several  heads  of  departments  in 
relation  to  the  subjects  which  appertain  to  their  several 
duties.  Hence,  we  consider  the  act  of  the  war  depart- 
ment in  requiring  the  reservation  to  be  made  as  being 
in  legal  contemplation  the  act  of  the  President,  and 
consequently,  that  the  reservation  thus  made  was  in 
legal  effect  a  reservation  made  by  order  of  the  Presi- 
dent within  the  terms  of  the  act  of  Congress. 

The  ordinary  rule,  then,  in  execution  is  delegation. 
This  case  again  shows  the  internal  law  of  administra- 
tion. A  superior  may  give  pow7er  to  an  inferior  or  he 
may  withhold  power  from  an  inferior.  If  he  commands, 
the  inferior  acts  in  his  place  and  that  act  is  his  act;  if 
he  forbids,  the  inferior  cannot  do  a  valid  acl.     So  if  a  su- 

(17) 

Atlrn.  Law — 2. 


■'  §  5  ADMINISTRATIVE  LAW.  [Ch.  1 

perior  gives  a  general  authority  to  an  inferior  to  act  in 
his  place,  the  inferior  may  act  in  his  place  until  the  au- 
thority  is  revoked,  as  it  may  be  at  any  time.  That  is  the 
system  in  administration.  The  internal  law  of  the  ad- 
ministration is  seen  again  to  be  no  more  than  the  usual 
order  in  the  exercise  of  discretion.  Such  is  adminis- 
tration.3 

■S  5.     Result  for  administration. 

This  is  the  administrative  law.  The  external  law  and 
the  internal  law  make  up  the  law  of  administration. 
It  must  be  plain  why  this  distinction  is  of  such  im- 
portance. These  are  two  concentric  circles.  The  outer 
circle  is  the  external  law.  that  is  the  exterior  boundary; 
the  law  of  the  land  is  rigid,  that  cannot  be  passed.  The 
inner  circle  is  the  internal  law,  that  is  an  interior 
boundary  of  a  sort ;  for  the  law  of  administration  is 
clastic,  that  law  is  the  discretion  of  the  officer  that  en- 
forces it.  This  is  not  an  academic  distinction;  it  is  in 
practical  affairs  of  the  greatesi  consequence.  These  will 
appear  better  by  illustration.  A  case  upon  the  remedy 
by  the  external  law  should  bo  compared  with  a  case  upon 
the  relief  by  the  internal  law. 

:;  Internal  Law. — Gidley  v.  Palmerston.  3  Brod.  &  B.  275;  Reg. 
v.  Secretary  [1891]  2  Q.  B.  326;  Williams  v.  United  States.  1  How. 
290;  Dinsman  v.  Wilkes.  12  How.  390;  Ex  Parte  Selma  R.  R..  46  Ala. 
423;  McCreary  v.  Rogers,  35  Ark.  298;  Jacobs  v.  Supervisors,  100 
Cal.  121;  Ely  v.  Parsons,  55  Conn.  100;  United  States  v.  Chandler.  13 
D.  C.  527;  Towle  v.  State,  3  Fla.  202;  State  v.  Thrasher.  77  Ga. 
671;  Whalin  v.  Macomb,  76  111.  49;  State  v.  Snodgrass,  98  Ind.  546; 
Hildreth  v.  Crawford,  65  la.  339;  State  v.  Robinson,  1  Kan.  188; 
State  v.  Dubuclet,  28  La.  Ann.  85;  Weston  v.  Dane.  51  Me.  461; 
Mayo  v.  County  Com'rs,  141  Mass.  74;  Albrecht  v.  Long.  27  Minn. 
81;  People  v.  Auditor  General,  36  Mich.  271;  Swan  v.  Gray,  44  Miss. 
393;  State  v.  McGrath,  91  Mo.  386;  State  v.  Babcock.  18  Neb.  221: 
Commonwealth  v.  McLaughlin,  120  Pa.  St.  518;  Lane  v.  Schomp,  5 
C.  E.  Green,  82;  Phelps  v.  Hawley,  52  N.  Y.  23:  Morgan  v.  Pickard, 
86  Tenn.  208;  Sights  v.  Yarnalls,  12  Grat.  292. 
(18) 


Ch,  1]  LAW  OF  THE  ADMINISTRATION.  §  5 

The  case  in  mind  upon  the  remedy  that  the  external 
law  affords  a  claimant  is  Dunlap  v.  Black,  128  U.  S.  40 
(1888).  This  was  an  application  by  Oscar  Dunlap,  the 
relator  to  the  Supreme  Court  of  the  District  of  Colum- 
bia for  a  writ  of  mandamus  to  be  directed  to  the  re- 
spondent Black  as  Commissioner  of  Pensions,  command- 
ing; him  to  re-issue  a  pension.  The  relator  said  that 
whether  he  was  entitled  to  a  re-rating  was  a  question  of 
law;  and  that  it  did  not  lie  in  the  discretionary  power  of 
the  respondent,  as  Commissioner  of  Pensions  to  deny  or 
otherwise  abridge  his  rights  under  the  statute. 

Mr.  Justice  Bradley  pointed  out  how  limited  was  the 
power  of  the  judiciary  to  give  relief  against  the  action 
of  the  executive :  The  courts  will  not  interfere  by  man- 
damus with  the  executive  officers  of  the  government  in 
the  exercise  of  their  ordinary  official  duties,  even  where 
those  duties  require  an  interpretation  of  the  law,  the 
court  having  no  appellate  power  for  that  purpose;  but 
when  they  refuse  to  act  in  any  case  at  all,  or  when  by 
special  statute  or  otherwise  a  mere  ministerial  duty  is 
imposed  upon  them,  that  is,  a  service  which  they  are 
bound  to  perforin  without  further  question,  then,  if  they 
refuse,  a  mandamus  may  be  issued  to  compel  them. 
Judged  by  this  rule  the  present  case  presents  no  diffi- 
culty ;  the  Commissioner  of  Pensions  did  not  refuse  to  act 
or  decide.  lie  did  act  and  decide.  He  adopted  an  inter- 
pretation of  law  adverse  to  the  relator  and  his  decision 
was  confirmed  by  the  Secretary  of  Interior,  as  evi- 
denced by  his  signature  of  the  certificate.  Whether  if 
the  law  were  properly  before  us  for  consideration,  we 
should  be  of  the  same  opinion  or  of  a  different  opinion, 
is  of  no  consequence  in  the  decision  of  this  case.     We 

(19) 


K  5  ADMINISTRATIVE  LAW.  [Ch.  1 

have  no  appellate  power  over  the  Commissioner  and  no 
righl  to  reverse  his  decision.  That  decision  and  his  ac- 
tion taken  thereon  were  made  and  done  in  the  exercise  of 
liis  official  functions. 

Decisions  like  this  make  up  the  external  law  of  ad- 
ministration. It  is  well  to  appreciate  their  effect  at  the 
outset.  The  question  before  the  judiciary  is  whether 
there  has  been  legal  administration  or  illegal  adminis- 
tration, never  whether  there  has  been  proper  adminis- 
tration or  improper  administration.  The  courts,  there- 
fore, in  enforcing  the  external  law  of  the  administration 
can  only  inquire  whether  the  action  has  been  in  excess 
of  power,  never  whether  the  action  has  been  in  abuse  of 
power.  In  legal  phrase  the  question  before  the  court  is 
one  of  the  jurisdiction;  it  is  not  one  of  the  merits.  This 
puts  the  complainant  at  plain  advantage.  By  the  ex- 
ternal law  the  claimant  gets  relief  if  there  is  error  in 
law,  never  if  there  is  error  in  fact  in  I  lie  decision  of  the 
officer  of  which  he  complains. 

The  case  in  mind  upon  the  remedy  that  the  internal 
law  may  afford  the  claimant  is  Morrison  v.  McKessock, 
5  Land  Dec.  245  (1886).  One  McKessock  made  a  home- 
stead entry  in  1881.  Six  months  after  one  Morrison 
filed  an  affidavit  of  contest  alleging  that  the  said  Mc- 
Kessock had  not  resided  continuously  upon  the  land  for 
six  months  but  had  abandoned  it.  The  local  land  officers 
upon  the  contest  rendered  a  decision  in  favor  of  Mc- 
Kessock, and  dismissed  the  contest  of  Morrison.  From 
this  decision  Morrison  failed  to  appeal  to  the  General 
Office  within  the  time  set  by  the  regulations.  However, 
the  General  Land  Office  took  the  case  up  at  a  later  period 
upon  the  motion  of  Morrison.  The  decision  then  was  in 
(20) 


Ch.  1]  LAW  OF  THE  ADMINISTRATION.  g  5 

favor  of  Morrison.  From  this  decision  McKessock  ap- 
pealed to  the  Secretary  of  Interior  upon  the  ground  that 
the  Commissioner  was  without  jurisdiction  in  his  ac- 
tion, no  appeal  having  been  taken  to  him  within  the  time 
set. 

Secretary  Lamar  pointed  out  how  extended  was  the 
power  of  an  officer  higher  in  the  administration  to  give 
relief  against  the  action  of  an  officer  lower  in  the  ad- 
ministration under  any  circumstances  whatever:  The 
rule  of  practice  applies  to  parties  with  reference  to  their 
rights  as  between  themselves  aud  does  not  operate  as  a 
restriction  upon  the  power  or  authority  of  the  Commis- 
sioner to  reject  or  approve  the  finding  of  the  local  officers 
upon  a  question  of  fact  or  their  decision  upon  the  law 
applicable  thereto.  The  action  of  the  register  and  re- 
ceiver is  in  no  sense  final  as  to  the  rights  of  the  Gov- 
ernment, but  in  all  cases  their  decision  either  upon  the 
law  or  facts  is  subject  to  the  approval  of  the  Commis- 
sioner whether  directing  the  cancellation  of  an  entry  or 
approving  it  for  patent.  To  give  to  rule  48  the  effect 
contended  for  by  the  counsel  for  McKissock  would  re- 
quire the  Commissioner  to  approve  the  findiugs  of  the 
local  officers  not  appealed  from  on  all  issues  of  fact 
although  such  finding  might  be  contrary  to  his  own  judg- 
ment of  what  facts  had  been  proven  by  the  evidence 
submitted.  The  approval  required  of  the  Commissioner 
is  not  simply  a  ministerial  act,  but  the  decision  of  a  tri- 
bunal especially  charged  wiili  the  duty  of  deciding 
from  the  evidence  whether  the  law  lias  been  complied 
with,  and  in  the  discharge  of  this  duty  tin1  whole  record 
of  the  case  should  he  considered  by  him  as  if  it  had  been 
submitted  to  him  originally  for  his  decision  thereon. 

(21) 


§6  ADMINISTRATIVE  LAW.  [Ch.  1 

Decisions  like  this  make  up  the  internal  law  of  ad- 
ministration. It  is  well  to  appreciate  their  effect  at 
the  outset.  The  question  before  the  inferior  is  what 
is  proper  to  be  done,  the  question  before  his  superior 
is  whether  what  is  done  is  fit.  The  superior  thus  takes 
the  whole  question  up  anew  and  decides  himself  what  is 
just  in  the  premises  upon  the  merits.  All  of  which  is  of 
plain  advantage  to  the  complainant.  By  the  internal 
law  the  claimant  gets  relief  upon  any  grounds  that  may 
appear.  The  internal  law  deals  with  the  question  be- 
tween proper  and  improper  administration,  then — the 
inner  circle;  the  external  law  is  concerned  with  the 
question  between  legal  administration  and  illegal  admin- 
istration— the  outer  circle.  It  must  be  obvious  that  in 
any  controversy  with  the  administration  the  first  resort 
would  be  to  the  administration,  the  second  resort  to  the 
judiciary.4 
§  6.     Conclusion. 

The  difficulty  is  that  in  the  study  of  administration 
the  problem  is  as  often  institutional  as  it  is  legal.  The 
administration  may  be  considered  as  if  a  whole — the 
institutional  problem  ;  or  as  of  various  factors — the  legal 

*  Result  for  Administration. — Marbury  v.  Madison,  1  Cranch, 
169;  United  States  v.  Sehurz,  102  U.  S.  378;  United  States  v.  Raum, 
135  U.  S.  200;  United  States  v.  Black,  128  U.  S.  40;  Hall  v.  Steele,  82 
Ala.  562;  Pritchard  v.  Woodruff,  36  Ark.  196:  Fowler  v.  Peirce,  2  Cal. 
165;  Land  Co.  v.  Routt,  17  Colo.  156;  State  v.  Staub,  61  Conn.  553; 
State  v.  Gamble,  13  Fla.  9;  Barksdale  v.  Cobb,  16  Ga.  13:  Bryan  v. 
Cattell.  15  la.  538;  Gill  v.  State,  72  Iud.  266;  State  v.  Wrotnowski. 
17  La.  Ann.  156;  Magruder  v.  Swann,  25  Md.  173;  Deehan  v.  John- 
son, 141  Mass.  23;  People  v.  State  Treasurer,  24  Mich.  468;  McCul- 
loch  v.  Stone,  64  Miss.  378;  County  Board  v.  State  Board,  106  N.  C. 
83;  Pfund  v.  Valley  L.  &  T.  Co.,  52  Neb.  473:  State  v.  Vanarsdale. 
42  N.  J.  Law,  536;  State  v.  Moore,  42  Oh.  St.  103;  Commonwealth  v. 
Martin,  170  Pa.  St.  118;  Mauran  v.  Smith.  8  R.  I.  192;  State  v.  Coun- 
ty Com'rs,  28  S.  C.  258;  Davis  v.  State,  35  Tex.  118;  McCullough  v. 
Hunter,  90  Va.  699;  State  v.  Harvey,  11  Wis.  33. 
(  22  ) 


Ch.   1]  LAW  OF  THE  ADMINISTRATION.  $  h 

problem.  The  proper  relations  of  the  officials  in  the 
administration  is  the  institutional  problem;  the  proper 
position  of  the  officer  towards  the  citizen  is  the  legal 
problem.  And  yet  both  of  these  questions  are  involved 
in  any  business  of  the  administration,  which  cannot  move 
except  as  a  whole,  which  cannot  act  except  by  its  mem- 
bers. The  problem  in  administration  is  then  a  com- 
plex one  in  every  case.  And  it  is  necessary  to  have  the 
whole  law  governing  administration  in  mind  to  pass 
upon  any  question  that  may  arise  in  regard  to  the  exe- 
cution of  the  law. 

Administrative  law  is  one  of  two  co-ordinate  branch- 
es of  public  law ;  constitutional  law  is  the  other.  That 
is,  administrative  law  is  the  complement  to  consti- 
tutional law;  constitutional  law  prescribes  the  broad 
outlines  of  government — it  describes  the  executive  de- 
partment of  the  government  and  fixes  certain  large  limi- 
tations upon  the  functions  of  the  administration.  Ad- 
ministrative law  organizes  the  administration — it  pre- 
scribes in  the  minutest  detail  the  rules  which  shall  gov 
ern  the  executive  department  in  administering  the  law. 
It  is  these  rules  which  constitute  the  body  of  adminis- 
trative law.  Administrative  law  consists,  as  has  been 
said,  of  those  rules  which  govern  the  executive  depart- 
ment in  the  administration  of  the  law. 

(23) 


CHAPTER  II. 

THE   POSITION   OF   THE   ADMINISTRATION. 

§     '.".  Introduction. 

S.  Irresponsibility  of  the  Sovereign. 

9.  State  Action. 

10.  Governmental. 

11.  Administrative. 

12.  Responsibility   of   the   Officer. 

13.  Public  Action. 

14.  Official. 

15.  Personal. 

16.  Conclusion. 

§  7.     Introduction. 

In  every  government  one  condition  is  fundamental  -  - 
that  is  the  sovereignty  of  the  state  Since  law  itself 
must  be  based  ultimately  upon  the  flat  of  the  state,  it  is 
the  assent  of  that  society  that  makes  the  law;  no  man, 
therefore,  may  question  whether  any  action  of  the 
state  is  valid,  since  by  the  hypothesis  it  cannot  hut  be 
legal.  Even  if  it  were  possible  to  conceive  of  any  wrong 
done  by  the  state,  the  right  would  be  of  no  value  what- 
ever to  the  individual  wronged.  For  it  is  in  the  next 
place  impossible  to  imagine  that  any  suit  could  be 
brought  against  the  state  wit  hunt  its  consent;  since  all 
the  processes  of  justice  proceed  from  the  state  itself.  Xo 
act  of  the  government  as  a  government,  therefore,  ever 
can  be  questioned  in  any  way.  In  that  view  no  action 
of  the  administration  as  an  administration  is  subject  to 
the  inquiry  of  the  law;  since  the  administration  in  the 
execution  of  its  functions  is  conceived  as  the  reprc- 
(24) 


Ch.  2]  POSITION  OF  THE  ADMINISTRATION.  §  7 

sentative  of  the  state  with  the  immunities  of  the  state 
itself.  These  immunities  of  the  sovereign,  not  only  from 
the  imputation  of  wrong-,  but  even  from  inquiry  into  its 
action,  are  without  qualification;  and  the  subjection  of 
the  individual  to  the  state,  its  consequence,  is  also 
without  exception.  This,  then,  is  one  fundamental  con- 
dition to  be  taken  into  the  account  in  any  consideration 
of  the  action  of  the  administration. 

On  the  other  hand,  there  is  another  condition  funda- 
mental as  this,  and,  in  the  actual  conduct  of  administra- 
tion, overshadowing.  Wherever  the  common  law  prevails 
the  doctrine  of  the  supremacy  of  the  law  of  the  land  is 
to  be  found.  This  doctrine,  that  before  the  law  all  per- 
sons must  stand  alike  without  regard  to  station,  is  in 
its  consequences  the  most  pervading  principle  in  ad- 
ministrative law  with  us.  No  man  may  be  seized,  none 
of  his  goods  may  be  distrained  without  the  due  process 
of  the  law.  More  than  that,  no  man  is  above  the  law, 
but  every  man  is  subject  to  the  ordinary  law  of  the  land 
and  amenable  to  the  jurisdiction  of  the  ordinary  tri- 
bunals. Before  the  law  of  the  land,  therefore,  the  public 
officer  stands  as  a  private  person  ;  and  the  result  is  start- 
ling: every  act  by  every  public  officer  may  be  subject 
of  suit  against  the  officer  as  an  ordinary  person.  More 
than  that,  unless  the  officer  can  show  an  exact  legal  justi- 
fication for  the  precise  net  which  he  has  done,  he  has 
done  nothing  more  nor  less  than  a  legal  wrong  by  bis 
interference,  for  which  lie  must  answer  just  as  any 
private  wrong-doer  must  answer  for  his  wrongs.  Such 
is  tin1  principal  rule  of  (be  external  law  of  administra- 
tion in  the  common  law  system  ;  and  such  is  (be  working 
out   of  it  into  detail.      In  Ibis  view  every  action  of  the 

(25) 


g  7  ADMINISTRATIVE  LAW.  [Ch.  2 

administration  is  subject  to  the  law  of  the  land ;  in  that 
some  officer  of  the  administration  must  answer  in  his 
own  person,  if  anything  be  done  by  it  without  the  author- 
ity of  positive  law.  This  is  the  important  condition  upon 
administration  under  the  common  law  system. 

The  problem  to  be  worked  out  in  these  lectures  is, 
therefore,  the  accommodation  of  these  two  principles 
upon  which  together  the  law  relative  to  administration 
under  our  system  depends.  The  whole  situation  is  just 
this  in  brief:  The  administration,  all  of  its  officers  to- 
gether, is  not  responsible  to  the  processes  of  the  law, 
as  the  state  is  not;  but  the  public  officer,  any  one  of  the 
administration  apart,  is  responsible  to  every  suit,  as  a 
private  individual  may  be.  These  are  the  conditions 
under  which  the  administration  must  proceed  iu  a  coun- 
try where  the  supremacy  of  the  law  is  made  the  basis  of 
political  institutions.  The  attempt  in  this  lecture  will 
be  to  show  by  the  conglomeration  of  many  instances,  how 
administration  proceeds  with  us  in  conformity  with  both 
principles  without  ignoring  either.  It  is  therefore  neces- 
sary to  consider  the  precise  extent  to  which  the  admin- 
istration is  free  from  liability;  and  the  more  indis- 
pensable to  discover  the  exact  point  at  which  the  liability 
of  the  officer  begins.  For  it  is  evident  that  the  business 
of  government  could  not  go  on  unless  these  rules  were 
well  established  and  well  worked  out  into  detail,  with 
care  to  preserve  the  true  rights  and  the  true  duties  of 
all  concerned;  since  no  man  of  prudence  and  foresight 
would  accept  public  office  under  liabilities  which  were 
undefined.  The  order  of  discussion  will  be  therefore 
this :  first,  to  inquire  how  far  the  administration  is  irre- 
sponsible; second,  to  discover  how  far  the  officer  is  re- 
sponsible. 
(26) 


Ch.  2]  POSITION  OF  THE  ADMINISTRATION.  §  8 

§  8.     Irresponsibility  of  the  sovereign. 

That  the  sovereign  could  not  be  sued  in  his  own  courts 
is  found  adjudicated  in  our  earliest  books;  disposed  of 
briefly  even  then,  since  in  any  time  that  must  always  be 
held  a  self-evident  proposition.  The  case  of  the  Abbot  of 
Saint  Searle  to  that  effect  is  found  reported  as  follows 
in  Y.  B.  30  Ed.  I.  170  (1302)  :  To  a  writ  of  right  brought 
against  the  Abbot  of  Saint  Searle  it  was  answered  that 
the  tenements  were  seized  into  the  King's  hands  by  rea- 
son Avhereof  the  Abbot  could  not  and  ought  not  to  an- 
swer. Wescot. — Although  the  tenements  are  seized  in- 
to his  hands  you  are  tenant  of  the  freehold;  judgment  if 
you  ought  not  to  answer.  Brumpton. — He  ought  to  an- 
swer; but  inasmuch  as  we  cannot  entertain  the  suit 
whilst  the  tenements  are  seized,  I  advise  you  who  wish  to 
sue  for  them  to  send  to  Court  and  purchase  permission ; 
for  we  will  hold  no  such  plea  before  we  are  commanded 
to  do  so. 

The  rule  is  as  positive  in  the  law  of  England  today 
as  ever  it  was.  It  is  perhaps  difficult  to  put  a  more  ex- 
treme case  than  the  actual  case  arising  in  the  Goods  of 
George  III.,  Addams,  255  (1819).  This  was  an  applica- 
tion to  the  Prerogative  Court  of  Canterbury  for  its 
process  calling  upon  the  Procurator  General,  proctor 
for  and  on  behalf  of  the  King  George  IV.  as  heir  and 
successor  of  his  late  majesty  King  George  III.  to  see 
the  last  will  and  testament  of  his  late  majesty  pro- 
pounded and  proved  in  solemn  form  of  law;  promoted 
and  brought  by  her  highness  Olive,  daughter  of  the  Duke 
of  Cumberland,  the  only  legatee  named  in  the  said  will. 
This  application  the  court  refused  to  entertain  utterly, 
as  well  it  might. 

(27) 


§  8  ADMINISTRATIVE  LAW.  [Ch    2 

Sir  John  Nioholl  delivered  the  judgment;  he  said: 
To  proceed  by  this  sort  of  process  against  the  King  him- 
self; to  cite  him  personally;  to  put  him  in  contempt; 
to  do  certain  acts  in  pain  of  his  contumacy — was  too  ex- 
travagant even  to  be  attempted;  and  therefore  the  cita- 
tion is  prayed  against  the  King's  proctor.  But  here 
again  exactly  the  same  difficulty  occurs  both  in  principle 
and  practice,  either  the  King's  proctor  does  or  does  not 
represent  the  sovereign.  If  virtute  officii  he  represents 
His  Majesty,  he  has  the  same  privileges;  nor  can  he  be 
put  in  contempt,  and  proceeded  against  in  poenam.  If  he 
does  not  officially  quoad  hoc  and  so  as  to  be  binding  upon , 
represent  the  sovereign,  this  process  is  nugatory.  Why 
is  it  to  be  supposed  that  the  Legislature  meant  in  future 
to  submit  the  reigning  successor  to  the  ordinary  juris- 
diction to  which  no  sovereign  had  ever  before  been  sub- 
jected, and  which  would  be  a  departure  from  and  viola- 
tion of  the  constitutional  prerogatives  of  the  crown? 
Tke  King  can  do  no  wrong;  he  cannot  constitutionally  be 
supposed  capable  of  injustice.  If  he  is  properly  applied 
to  in  the  forms  prescribed  by  the  constitution  no  doubt 
ought  to  exist  that  real  justice  will  be  done.5 

5  Irresponsibility  of  the  Sovereign. — Goods  of  George  III,  Addams 
255;  Tobin  v.  Reg.,  16  C.  B.  N.  S.  310;  Beers  v.  Arkansas.  20 
How.  527;  Russell  v.  United  States,  182  U.  S.  516;  United  States 
v.  Surety  Co.,  74  Fed.  145;  Comer  v.  Bankhead,  70  Ala.  493;  Audi- 
tor v.  Davies,  2  Ark.  494;  Nougues  v.  Douglass.  7  Cal.  65;  Mulnix 
v.  Mutual  Ins.  Co.,  23  Colo.  71;  State  v.  Hartford,  50  Conn.  90;  Mfg. 
Co.  v.  Taylor,  3  MacA.  4;  Bloxham  v.  Florida  R.  R..  35  Fla.  625; 
Powers  v.  Bank,  18  Ga.  658;  Holmes  v.  Mattoon,  111  111.  27:  Craw- 
fordsville  v.  Irwin.  46  Ind.  439;  Metz  v.  Soule.  40  la.  236;  Regents 
v.  Hamilton,  28  Kan.  376;  Tate  v.  Salmon,  79  Ky.  540;  State  v. 
Jumel,  38  La.  Ann.  340;  Weston  v.  Dane,  51  Me.  461;  State  v. 
Bank,  6  G.  &  J.  205;  Railroad  v.  Commonwealth,  127  Mass.  43:  Locke 
v.  Speed,  62  Mich.  408;    State  v.  Torinus,   22  Minn.   272;    Edwards 

(28) 


Ch.  2]  POSITION  OF  THE  ADMINISTRATION.  §  9 

§  9.     State  action. 

I11  the  name  of  the  King,  the  fountain  of  Justice,  the 
King  cannot  by  his  own  writ  command  himself.  But  the 
broader  reason  is,  that  it  would  be  inconsistent  with  the 
very  idea  of  supreme  executive  power,  and  would  en- 
danger the  performance  of  the  public  duties  of  the  sov- 
ereign, to  subject  him  to  repeated  suits  as  a  matter  of 
right  at  the  will  of  any  citizen,  and  to  submit  to  the 
judicial  tribunals  and  control  and  disposition  of  his 
public  property,  his  instruments  and  means  of  carrying 
on  the  government  in  peace  and  war,  and  the  money  in 
his  treasury. 

These  principles  go  far;  to  such  an  extent  that  they 
must  be  taken  into  the  account  in  everyday  affairs  in  the 
commonest  transactions.  An  instance  in  point  is  Lodor 
v.  Baker,  Arnold  &  Co.,  39  New  Jersey  Law,  49  ( 1876). 
This  was  an  attachment  process  against  a  non-resident 
debtor.  The  only  property  in  New  Jersey  claimed  for 
attachment  was  the  sum  of  fl,000,  in  the  hands  of  the 
Treasurer  of  the  State  alleged  to  be  due  from  the  state 
of  New  Jersey  to  the  debtor.  A  motion  was  made  to 
quash  the  writ  on  the  ground  that  the  claim  which  the 
defendant,  the  debtor,  had  against  the  state  could  not 
be  attached.  The  argument  made  upon  the  motion  was 
thai  this  garnishment  proceeding  would  in  its  working 
out  involve  a  suit  against  the  state1  of  New  Jersey.     And 

v.  Lesueur,  132  Mo.  410;  State  v.  Mayes,  6  Cush.  (Miss.)  700;  State 
v.  Collins,  21  Mont.  448;  People  v.  Butler,  2  Neb.  6;  Torreyson  v. 
Board,  7  New  19;  Sargent  v.  Gilford,  06  N.  H.  543;  Dock  &  Imp.  Co.  v. 
Trustees,  32  N.  J.  Eq.  434;  O'Hara  v.  State,  112  N.  Y.  140;  Clodfelter 
v.  State,  86  N.  C.  51;  State  v.  Board  of  Public  Works,  30  Oh.  St.  409; 
Schaffer  v.  Cadwallader.  30  Pa.  St.  120;  In  Re  State  House  Fund. 
19  R.  I.  393;  Lowry  v.  Thompson.  25  S.  C.  410;  Moore  v.  Tate.  87 
Tenn.  744;  State  v.  Snyder.  60  Tex.  701;  Board  of  Public  Works  v. 
Gannt,  70  Va.  401. 

(29) 


8  9  ADMINISTRATIVE  LAW.  £Ch.  2 

obviously,  this  was  so;  since  the  process  must  go  against 
the  state  in  order  to  enforce  the  payment  of  its  claim 
against  the  state  for  the  satisfaction  of  the  creditor  of 
the  debtor. 

The  language  of  Mr.  Justice  Van  Syckel  was  em- 
phatic: The  state  enjoys  the  immunity  from  suits  as 
one  of  the  essential  attributes  of  sovereignty,  it  being 
an  established  principle  of  jurisprudence  in  all  civilized 
nations  that  the  sovereign  cannot  be  sued  in  its  own 
courts  without  its  consent.  New  Jersey  has  never  con- 
sented to  surrender  this  prerogative  right,  and,  there- 
fore, if  it  can  be  shown  that  this  proceeding  will  involve 
the  garnishee  in  litigation,  the  attempt  to  interfere  with 
funds  in  the  treasurer's  hands  is  unwarrantable.  The 
law  cannot  be  guilty  of  the  inconsistency  of  inviting  the 
suitor  to  attach  funds  of  this  nature,  and  at  the  same 
time  deny  him  every  remedy  to  enforce  his  lien.  The 
right  to  attach  must  necessarily  involve  the  right  to 
compel  the  state  to  appear  as  party  defendant  at  the 
suit  of  a  private  individual.  This  credit  not  being  at- 
tachable, the  writ  is  quashed. 

These,  then,  are  fundamental  things.  That  the  state 
cannot  be  sued  seems  at  first  a  technical  result;  that 
the  law  has  tied  its  own  hands;  and  so  has  lost  its  su- 
premacy. But  does  it  not  upon  consideration  seem  au 
untechnical  doctrine;  for  is  it  not  brute  force  that  dic- 
tates it  rather  than  subtle  logic?  The  state  is  sovereign 
not  because  it  may  be,  but  because  it  must  be ;  the  citizen 
is  subject,  not  because  it  is  law,  but  because  it  must  be 
so.  These  things  are  not  possible  in  theory;  to  have  a 
state  without  a  sovereign  or  a  sovereign  without  sub- 
jects. However  complex  the  state,  somewhere  there 
(30) 


Oh.   2]  POSITION  OF  THE  ADMINISTRATION.  <    l, 

must  reside  sovereignty;  whatever  the  form  of  the  gov- 
ernment, all  must  be  subjects  of  that  sovereign,  however 
free  they  may  be.  These  tilings  must  be  so,  in  fact,  be- 
cause  they  are  based  upon  the  power  somewhere,  with- 
out which  the  whole  system  would  be  disintegrated.  In 
last  analysis  these  are  reasons  for  the  rule  that  the  sov- 
ereign  is  irresponsible.  Therefore,  this  is  a  rule  without 
exceptions. 

The  gloss  of  this  section,  that  the  state  is  not  respon- 
sible, as  an  elementary  principle  has  many  applications 
in  the  practical  administration  of  the  law.  Whenever 
anything  gets  into  the  hands  of  the  state,  there  it  must 
remain,  for  no  process  of  law  can  take  it  out.  So  well 
is  this  understood,  that  cases  are  few  that  discuss  the 
issue  when  presented  in  so  abstract  a  form.  The  state 
will  return  the  property  when  it  seems  best  to  do  it,  no 
sooner.  Claims  against  the  state  of  other  sorts  have  no 
better  standing.  The  state  seizes  property  for  its  uses; 
the  state  will  pay  therefor  when  it  feels  so  inclined,  no 
sooner.  Since  this  also  is  well  understood,  claimants 
again  are  few  who  seek  to  get  reparation  by  suit  against 
the  state.  For  the  same  reason  there  is  no  obligation 
which  the  state  may  not  repudiate;  debtors  of  the  state 
are  paid  if  the  state  wills,  not  otherwise.  The  conse- 
quence most  noteworthy  of  all  in  this  for  administrative 
law  must  be  apparent  to  any  observer  of  these  conditions. 
The  administration  has  a  free  hand  to  work  out  its  own 
devices;  but  the  administrative  officer  has  no  freedom 
of  action,  except  action  within  the  law.  Since  the  admin- 
istration is  irresponsible,  the  officer  must  be  respon- 
sible.0 

'•State   Action.— Tobin    v.    Reg.,    16   C.    B.    (N.    S.)    31D;    Raleigh 

(31) 


R  10  ADMINISTRATIVE  LAW.  [Ch.    2 

§10.     Governmental. 

The  laws  which  subject  the  state  to  suit  are  few  even 
al  the  present  time.  The  United  States  is  now  subject 
to  suit  in  the  Court  of  Claims;  and  various  of  the  states 
make  some  provision  for  adjudication  of  claims  against 
them.  Wherever  such  a  law  exists  the  extent  of  the 
submission  of  the  state  is  statutory  in  the  first  instance. 
But,  as  in  all  questions  of  statutes,  the  common  law 
must  be  employed  in  the  construction  of  such  enact- 
ments. This  is  the  more  necessary  as  such  statutes  are 
often  general  in  form.  It  is  plain  that  by  such  a  statute 
the  state  should  not  be  held  to  have  held  itself  out  as 
liable  for  every  act  done  by  pxi'vx  officer  in  the  course  of 
administration. 

That  is  a  question  of  much  importance  in  our  subject ; 
whether  if  the  state  fail  in  its  duty  to  carry  out  the  laws 
by  default  of  its  governmental  agencies,  it  shall  be  held 
liable  for  this  as  a  wrong  done  by  it  to  its  citizens.  A 
test  case  is  Jones  v.  United  States,  l  Ct.  of  <'!.  -'.s:: 
(1863).  In  this  case  it  appeared  that  the  claimants  had 
entered  into  a  contract  with  the  Commissioner  of  In- 
dian affairs  for  the  survey  of  the  districts  described  in 
the  various  treaties  made  between  the  United  States  ami 
Indian  tribes.    An  astronomer  was  appointed  under  the 

v.  Goschen  [1898]  1  Ch.  73;  Bowman  v.  Farnell,  8  N.  S.  W.  223; 
Beers  v.  Arkansas,  20  How.  527;  The  Siren,  7  Wall.  152:  McMeekin 
v.  State,  9  Ark.  553;  Clinton  v.  Bacon,  56  Conn.  517;  Brown  v.  Fin- 
ley,  3  MacA.  77;  O'Neill  v.  Sewell,  85  Ga.  481;  Lightner  v.  Steicagel, 
33  111.  510;  Weston  v.  Dane,  51  Me.  461;  Dewey  v.  Garvey,  130  Mass. 
86;  Brooks  v.  Mangan.  86  Mich.  576;  Lodor  v.  Baker,  etc.,  Co.,  39 
N.  J.  Law,  49;  Agent  of  Prison  v.  Rikemam.  1  Denio,  279;  State  v. 
Godwin,  123  N.  C.  697;  Maddox  v.  Kennedy,  2  Rich.  Law,  102;  Moore 
v.  Tate,  87  Tenn.  744:  Board  of  Public  Works  v.  Gannt,  76  Va.  455. 
(32) 


Ch.   2J  POSITION  OF  THE  ADMINISTRATION.  §  10 

provisions  of  thai  contract  to  fix  the  initial  points  of  the 
survey.  When  the  parties  were  in  the  field  the  United 
States  government  withdrew  the  troops  that  had  been 
employed  in  holding  the  Indian  country;  and  thereby 
the  contractors  were  long  delayed  in  proceeding  with 
their  commission.  The  claimants,  therefore,  now  insist 
as  a  matter  of  law  that  the  United  States  could  not  with- 
draw their  police  forces  from  the  Indian  territory  with- 
out incurring  a  liability  to  the  contractors  to  make  them 
compensation. 

The  judgment  of  the  Court  of  Claims  was  delivered 
by  Mr.  -Justice  Nott  :  This  position  cannot  be  sustained. 
The  two  characters  which  the  government  possesses  as  a 
contractor  and  as  a  sovereign  cannot  thus  be  fused;  nor 
can  the  United  States  while  sued  in  the  one  character  be 
made  liable  in  damages  for  acts  done  in  the  other.  If 
the  removal  of  t loops  from  a  district  liable  to  invasion 
will  give  the  claimant  damages  for  unforeseen  expenses 
against  a  private  individual,  as  in  any  ordinary  ca^e 
it  will  not,  then  it  will  when  the  United  States  are  de- 
fendants, but  not  otherwise.  This  distinction  between 
the  public  acts  and  the  private  contracts  of  the  govern- 
ment not  always  strictly  insisted  on  in  the  earlier  days 
of  this  court,  frequently  misapprehended  iu  public- 
bodies,  and  constantly  lost  sight  of  by  suitors  who  come 
before  us, — we  now  desire  to  make  so  broad  and  dis- 
tinct that  hereafter  the  two  cannot  be  confounded;  and 
we  repeat  as  a  principle  applicable  to  all  cases,  that, 
the  United  Suites  ;is  ;i  contractor  cannot  be  held  liable 
directly  or  indirectly  for  the  public  acts  of  the  United 
States  as  n  sovereign. 

All  this  is  undoubted  law;  although  the  United  States 

(33) 

Adm.  Law — 3. 


^    10  ADMINISTRATIVE    LAW.  [Ch.    2 

may  have  submitted  itself  to  suit  by  a  general  statute, 
the  interpretation  of  that  statute  will  not  include  a 
case  like  this  where  the  government  is  sued  as  a  govern- 
ment for  a  governmental  act.  The  public  acts  of  the 
sovereign  are  never  to  be  conceived  as  done  subject  to 
private  law;  therefore,  it  will  not  be  held  possible  that 
any  private  wrong  is  done  thereby.  Even  when  the  gov- 
ernment enters  into  contracts,  it  does  not  divest  itself 
of  its  sovereign  character ;  and  the  result  often  is  that 
the  administration  acting  in  behalf  of  the  state  will 
interfere  in  the  performance  of  a  contract  which  the 
administration  lias  entered  into  in  some  other  capacity. 
Examples  of  this  sort  of  thing  may  be  found  in  many 
places  and  some  of  the  cases  put  are  hard  indeed  at  first 
impression.  But  no  harder  than  the  necessity  itself  is 
upon  which  in  last  analysis  the  rule  rests.  The  truth 
of  the  matter  is  that  in  administration  there  must  be  a 
possibility  of  unanswerable  power  ;  that  in  the  meeting  of 
emergencies  which  arise  in  the  course  of  government 
there  must  be  the  right  to  break  with  every  arrangement 
that  has  been  entered  into  before  and  to  do  what  the 
exigencies  of  the  situation  require. 

In  administrative  action  the  situation  may  fairly  be 
expressed  by  saying  that  the  state  is  the  principal  and 
the  officer  is  the  agent.  If,  then,  upon  that  description 
the  analogy  of  the  law  of  private  principal  and  private 
agent  is  taken,  for  wrongs  done  by  the  officer  in  the 
course  of  administration  the  state  would  be  liable.  Let 
some  ease  be  taken  to  test  lliis.  for  example,  (Jihbons  v. 
United  States,  8  Wall.  2<J<)  i  1868),  a  leading  authority 
The  wrong  involved  in  that  case  at  bottom  was  a  false 
imprisonment  with  large  consequential  damages,  al- 
(34) 


Ch.  2]  POSITION  OF  THE  ADMINISTRATION.  §    10 

though  the  petition,  it  is  true,  said  nothing  about  any 
arrest,  force,  or  duress.  It  was  all  an  attempt  under  the 
assumption  of  an  applied  contract  to  make  the  govern- 
ment responsible  for  the  unauthorized  acts  of  its  officers, 
those  acts  being  in  themselves  torts. 

Mr.  Justice  Miller  disposed  of  the  case  with  his  usual 
directness;  he  said:  No  government  has  ever  held  itself 
liable  to  individuals  for  the  misfeasance,  laches,  or  un- 
authorized exercise  of  power  by  its  officers  and  agente. 
It  does  not  undertake  to  guarantee  to  any  person  the 
fidelity  of  any  of  the  officers  whom  it  employs,  since 
that  would  involve  it  in  all  its  operations  in  endless 
embarrassments,  and  difficulties,  and  losses,  which 
would  be  subversive  of  the  public  interests:  the  language 
of  the  statutes  which  confer  jurisdiction  upon  the  court 
of  claims  excludes  by  the  strongest  implication  demands 
founded  on  torts.  The  general  principle  which  we  have 
already  stated  as  applicable  to  all  governments,  forbids, 
on  a  policy  imposed  by  necessity,  that  they  should  hold 
themselves  liable  for  unauthorized  wrongs  inflicted  by 
their  officers  on  the  citizens  though  occurring  while  en- 
gaged in  the  discharge  of  official  duties. 

No  proposition  of  administrative  law  is  so  undisputed 
as  this,  that  the  government  is  not  liable  for  torts  in 
the  course  of  governmental  action;  and  no  rule  of  ad- 
ministrative law  is  so  without  exception  as  this.  As  a 
matter  of  theory  it  is  impossible  to  conceive  of  the  state 
as  a  private  principal  subject  to  the  liabilities  of  the 
law  of  private  agency;  the  truth  is  that  this  is  another 
realm,  this  is  a  public  principal,  the  law  of  public  agency 
governs;  and  according  to  that  public  law  it  is  as  im- 
possible for  the  state  to  authorize  wrong-doing,  as  it  is 

(35) 


S    H  ADMINISTRATIVE    LAW.  [Ch.    2 

inconceivable  that  the  state  should  do  wrong  itself.  But 
more  than  this,  as  a  matter  of  policy  the  rule  has  every 
support.  No  government  could  hold  itself  out  to  answer 
for  its  shortcomings ;  that  they  are  always  present,  it  is 
evitable.  A  government  is  an  imperfect  machine  at  the 
best.  Liable  in  various  ways  governments  may  make 
themselves ;  never  in  this.  As  this  chapter  goes  on,  this 
at  least  must  be  more  evident  with  each  case  that  is 
added  :  that  no  government  could  hold  itself  liable  for  all 
the  wrongs  that  may  arise  in  the  course  of  administra- 
tion, and  long  endure.  Much  remains  to  be  explained  in 
working  out  this  principle ;  but  this  is  the  rule,  once  for 
all.7 

§  11.     Administrative. 

The  chief  obligation  resting  upon  the  administration 
in  any  government,  great  or  small,  is  to  see  that  the 
laws  are  faithfully  executed.  But  suppose  that  the  laws 
are  not  enforced,  and  because  of  tins  failure  in  adminis- 
tration some  person  suffers  a  special  damage;  is  this 
a  case  for  suit  against  the  governmental  body,  or  is  it 
not?  A  dramatic  case  upon  this  special  issue  is  Levy  v. 
Mayor,  1  JSandford,  465  (1848).  This  was  an  action 
against  the  Mayor,  Aldermen,  and  Commonalty  of  the 
City  of  New  York  for  damages  for  the  death  of  the  plain- 

<  Governmental. — Russell  v.  Devon,  2  T.  R.  667;  Lee  v.  Munroe, 
7  Cranch  366;  Gibbons  v.  United  States.  8  Wall.  269;  Brown  v. 
United  States,  6  Ct.  of  CI.  171;  Jones  v.  United  States,  1  Ct.  of  CI. 
383;  Sherbourne  v.  Yuba  Co.,  21  Cal.  113;  Stillman  v.  Isham,  11 
Conn.  124;  Marshall  Co.  Sup'rs  v.  Cook,  38  111.  44;  McCaslin  v.  State.  99 
Ind.  428;  Fries  v.  Porch,  49  la.  351;  Weston  v.  Dane,  51  Me.  461; 
Williams  v.  Adams,  3  Allen  171;  Detroit  v.  Blackeby,  21  Mich.  84; 
Sooy  v.  State,  39  N.  J.  L.  135;  Adams  v.  WTiscasset  Bank,  1  Me.  361;. 
Brcwn's  Adm'r  v.  Guyandotte,  34  W.  Va.  299. 
(36) 


Ch.   2]  POSITION  OF  THE  ADMINISTRATION.  §    H 

tiff's  son,  an  infant,  who  was  killed  in  one  of  the  public 
streets  by  swine  which  had  run  him  down  and  trampled 
him  to  death.  The  City  of  New  York  had  enacted  an 
ordinance  prohibiting  swine  from  running  at  large  in 
the  streets,  with  a  provision  for  the  impounding  of  ani- 
mals so  found.  Notwithstanding  which,  the  plaintiff  de- 
clared, the  corporation  of  New  York,  being  unmindful  of 
its  undertaking,  did  nor  keep  the  streets  free  and  clear 
from  swine  straying  therein;  whereby  some  swine  so 
suffered  by  the  corporation  to  be  so  at  large  attacked, 
assaulted,  fell  upon,  and  mortally  wounded  said  E.  D. 
Levy. 

Mr.  Justice  Sandpord  delivered  an  incisive  opinion: 
The  plaintiff's  counsel  well  observed,  that  there  was 
no  precedent  for  such  an  action  as  this;  and  we  are  com- 
pelled to  add,  that  there  is  no  principle  upon  which  it 
can  be  sustained.  The  corporation  is  undoubtedly  vested 
with  certain  legislative  powers,  among  which  is  the  au- 
thority to  restrain  swine  from  running  at  large  in  the 
streets;  and  they  have  exercised  it  by  enacting  an  ordi- 
nance to  that  effect.  The  idea,  that  because  they  may 
prohibit  a  nuisance,  that  therefore  they  must  not  only 
pass  a  prohibitory  law,  but  must  also  enforce  it,  at  the 
hazard  of  being  subjected  toall  damages  which  may  ensue 
from  such  nuisance,  is  certainly  novel.  The  corporation 
of  the  city,  in  this  respect,  stands  upon  the  same  footing 
within  its  own  jurisdiction,  as  the  state  government  does 
in  respect  of  The  state  at  large.  It  is  the  duty  of  the  gov- 
ernment to  protect  and  preserve  the  rights  of  the  citizens 
of  the  state,  both  in  person  and  property,  and  it  should 
provide  and  enforce  wholesome  laws  for  that  object. 
But  injuries  to  both  person  and  property  will  occur, 

(37) 


v;    u  ADMINISTRATIVE    LAW.  [Ch.    2 

which  no  legislation  can  prevent,  and  which  no  system 
of  laws  can  adequately  redress.  The  government  does 
not  guaranty  its  citizens  against  all  the  casualties  inci- 
dent to  humanity  or  to  civil  society;  and  we  believe  it  has 
never  been  called  upon  to  make  good,  by  way  of  damages, 
its  inability  to  protect  against  such  misfortunes.  There 
would  be  no  end  to  the  claims  against  this  city  and  state, 
if  such  an  action  as  this  is  well  founded.  There  are  im 
numerable  illustrations  of  the  application  of  the  prin- 
ciple. It  suffices  to  say,  that  no  government,  whether 
national,  state  or  municipal,  ever  assumed,  or  was  sub- 
jected to  a  general  liability  of  this  description. 

That  the  enforcement  of  law  is  a  governmental  act 
is  perhaps  the  most  fundamental  proposition  in  this 
branch  of  this  subject.  The  rule  here  is  so  plain  a  deduc- 
tion from  the  general  proposition  as  to  the  irresponsibil- 
ity of  the  government  that  there  is  no  conflict  in  the  au- 
thorities. The  cases  are  not  many;  and  they  are  all  to 
the  same  effect.  The  enforcement  of  law  is  a  duty  of  gov- 
ernment, to  be  sure,  but  it  is  a  public  duty  ;  and  as  a  pub- 
lic duty  it  is  recognized  only  in  public  law.  The  result  is 
that  there  is  no  liability  to  suit  for  a  failure  in  adminis- 
tration, since  administration  is  a  most  patent  govern- 
mental duty. 

.Moreover,  it  is  of  course  impossible  that  all  of  the  law 
could  always  be  enforced  at  once.  Indeed,  that  is  an  ele- 
mentary fact  in  administration,  not  often  appreciated, 
that  in  administration  it  is  always  a  question  for  the  ex- 
ecutive department  what  laws  shall  have  enforcement, 
what  laws  shall  not;  or  at  least,  to  the  enforcement  of 
what  laws  shall  the  government  direct  its  best  efforts 
and  first  attention,  and  what  laws  shall  by  that  process 
of  procedure  have  a  secondary  enforcement.  At  all 
(38) 


Ch.   2]  POSITION  OF  THE  ADMINISTRATION.  £    ]  1 

events  the  executive  department  should  have  a  free  hand 
iu  this  matter,  and  it  gets  that  freedom  for  the  exercise 
of  its  discretion  from  this  condition  of  the  law. 

Another  instance  of  the  application  of  this  principle 
which  appears  from  time  to  time  in  the  reports  may  be 
represented  by  Wheeler  v.  Cincinnati,  19  Oh.  St.  10 
(1869),  as  well  as  by  any  other  case.  The  plaintiff 
brought  his  action  seeking  to  recover  from  the  defendant 
the  damages  arising  from  the  casual  destruction  of  his 
house  <  situated  within  tin1  limits  of  said  city)  by  fire; 
on  the  ground  that  the  defendant  had  failed  and  neg- 
lected to  provide  the  necessary  cisterns  and  suitable 
engines  for  extinguishing  tires  in  that  quarter  of  city 
in  which  his  said  house  was  situated,  and  that  certain 
officers  and  agents  of  the  tire  department  of  said  city 
had  neglected  and  failed  to  perform  their  duties  in 
regard  to  the  extinguishing  of  said  fire,  by  reason 
whereof  said  fire  was  not  extinguished,  as  it  otherwise 
might,  and  could  have  been.  A  demurrer  to  his  peti- 
tion, alleging  these  facts,  was  sustained  by  the  court. 
and  judgment  rendered  for  the  defendant,  which  was  sub- 
sequently affirmed  by  the  District  Court,  upon  proceed- 
ings in  error. 

Upon  this  case  the  opinion  of  the  COURT  was  this :  The 
laws  of  this  State  have  conferred  upon  its  municipal  cor- 
porations power  to  establish  and  organize1  fire  compa- 
nies, procure  engines  and  other  instruments  necessary  to 
extinguish  fire,  and  preserve  the  buildings  and  property 
within  their  limits  from  conflagration,  and  to  prescribe 
such  by-laws  and  regulations  for  the  government  of  said 
companies  as  may  be  deemed  expedient.  Bui  the  pow- 
ers thus  conferred  are  in   their   nature  legislative  and 

(39) 


tt    -n  ADMINISTRATIVE    LAW.  [Ch.    2 

governmental;  the  extent  and  manner  of  their  exercise, 
within  the  sphere  prescribed  by  statute,  are  necessarily 
i..  be  determined  by  the  judgment  and  discretion  of  the 
proper  municipal  authorities,  and  for  any  defect  in  the 
execution  of  such  powers,  the  corporation  cannot  be  held 
liable  to  individuals.  Nor  is  it  liable  for  a  neglect  of 
duty  on  the  part  of  fire  companies,  or  their  officers,  char- 
ged with  the  duty  of  extinguishing  fires.  The  power 
of  the  city  over  the  subject  is  that  of  a  delegated  quasi 
sovereignty,  which  excludes  responsibility  to  individuals 
for  the  neglect  or  nonfeasance  of  an  officer  or  agent  char- 
ged with  the  performance  of  duties.  The  case  differs 
from  that  where  the  corporation  is  charged  by  law  with 
the  performance  of  a  duty  purely  ministerial  in  its  char- 
acter. We  know  of  no  case  in  which  an  action  like  the 
present  lias  been  held  to  be  maintainable. 

Upon  all  the  authorities  this  may  be  regarded  as  set- 
tled law,  that  for  nonfeasance  in  matter  of  administra- 
tion there  is  no  liability  upon  the  government.  Why 
this  must  lie  so  it  is  not  difficult  to  see.  It  is  obvious 
that  the  harm  done  is  imputable  to  the  state,  incident 
to  the  unavoidable  imperfections  of  a  machinery  so  com- 
plicated as  this  system  of  administration.  A  govern- 
ment which  should  hold  itself  liable  for  all  injuries  con- 
sequent upon  the  failure  of  its  administration  to  enforce 
the  laws  could  not  respond  long  to  the  damages  in  which 
it  would  be  cast  in  innumerable  suits.  The  truth  of  the 
matter  is  that  we  do  not  conceive  of  this  liability  to  be 
enforced  by  the  courts,  but  to  be  redressed  at  the  ballot.8 

*  Administrative—  Montreal  v.  Mulcair,  28  Can.  Sup.  458;  Dela- 
cauw  v.  Fosbery,  13  N.  S.  W.  Wkly.  Notes  49;  Spalding  v.  Vilas,  161 
U.  S.  483;  Workman  v.  New  York,  179  U.  S.  552;  State  v.  Hill,  54 
Ala.  67;  Chope  v.  Eureka,  78  Cal.  588;  Piatt  v.  Waterbury,  72 
(40) 


Ch.  2]  POSITION  OF  THE  ADMINISTRATION.  §   12 

§  12.     Responsibility  of  the  officer. 

The  administration  as  an  administration  cannot  be 
impleaded  for  an  action  done  in  the  pursuance  of  the 
execution  of  the  law.  A  late  case  which  lays  down  the 
law  with  perfect  discrimination  is  Raleigh  v.  Goschen 
[1898]  1  Ch.  73.  This  action  was  commenced  against 
the  Eight  Hon.  George  J.  Goschen  and  five  other  per- 
sons described  as  the  Lords  Commissioners  of  the  Ad- 
miralty, and  Major  E.  Raban,  described  as  the  Director- 
General  of  Naval  Works,  the  object  of  which  was  to  es- 
tablish against  the  Lords  Commissioners  and  the  Direct- 
or-General that  they  were  trespassers  in  entering  upon 
certain  land  the  property  of  Raleigh,  the  plaintiff,  in  the 
neighborhood  of  Dartmouth,  to  stake  out  ground  for  a 
naval  college  preliminary  to  process  for  compulsory  pur- 
chase. By  the  defense  it  was  submitted  that  the  court 
had  no  jurisdiction  to  enter  the  action;  that  the  defend- 
ants were  agents  of  the  crown ;  and  that  they  were  not 
liable  to  be  sued  in  respect  of  acts  done  by  them  as  part 
of  The  executive  government  on  behalf  of  her  majesty; 
and  they  submitted,  as  a  matter  of  law,  that  the  action 
could  not  be  maintained. 

RoxiER,  J.,  said:  I  will  state  some  principles  of  law 
which  I  conceive  govern  this  class  of  cases.  Xow,  in 
the  first  place,  inasmuch  as  the  plaintiffs  could  not  sue 

Conn.  531;  Love  v.  Atlanta,  95  Ga.  129;  Arms  v.  Knoxville,  32  111. 
App.  604;  Summers  v.  Daviess  Co.  Com'rs,  103  Ind.  262;  Ogg  v.  Lans- 
ing, 35  la.  495;  Brown  v.  Vinalhaven,  65  Me.  402;  Boehm  v.  Mayo, 
61  Md.  259;  Buttrick  v.  Lowell,  1  Allen  172;  Edes  v.  Boardman, 
58  N.  H.  580;  Wild  v.  Paterson.  47  N.  J.  Law,  406;  Levy  v.  Mayor. 
1  Sandf.  465;  Springfield  F.  &  M.  Ins.  Co.  v.  Keeseville,  148  N.  Y.  46; 
Wheeler  v.  Cincinnati,  19  Oh.  St.  19;  McDade  v.  Chester,  117  Pa.  St. 
414;  Wixon  v.  Newport,  13  R.  I.  454;  Horton  v.  Mayor,  4  Lea,  47; 
Mulcairns  v.  Janesville,  67  Wis.  24. 

(41) 


R    12  ADMINISTRATIVE    LAW.  [Ch.    2 

the  crown  for  a  past  or  threatened  trespass,  they  could 
not  in  respect  to  any  trespass,  sue  the  defendants  in  the 
capacity  of  agents  for  or  as  respresenting  the  crown. 
On  the  other  hand,  the  plaintiffs  could  sue  any  persons 
actually  committing  or  threatening  the  trespass,  even 
though  those  persons  only  acted  on  behalf  of  the  (Gov- 
ernment. But  in  this  case  they  could  be  sued  not  be- 
cause, but  in  spite  of  the  fact  that  they  occupied  official 
positions  or  acted  as  officials.  In  other  words,  to  sum 
up  shortly  the  result  of  the  above  by  the  use  of  conven- 
ient phraseology,  the  plaintiffs  in  respect  of  the  matters 
they  are  now  complaining  of  could  sue  any  of  the  de- 
fendants individually  for  trespasses  committed  or  threat- 
ened; but  they  could  not  sue  the  defendants  officially  or 
as  an  official  body.  I  therefore  order  the  present  action 
dismissed. 

It  will  be  seen  that  the  decision  in  this  case  covers 
the  whole  ground  ;  it  provides  for  The  case  where  the  ad- 
ministration is  sued  as  an  entity ;  it  provides  also  for  the 
case  where  The  administration  is  brought  into  the  courts 
as  a  collection  of  individuals.  Suit  may  not  be  brought 
against  an  official  body  as  an  official  body,  since  that  is 
in  last  analysis  a  suit  against  the  stale;  but  suit  may 
well  enough  lie  brought  against  the  members  of  the  body 
upon  the  basis  of  a  single  action  against  simple  indi- 
viduals. In  the  practical  business  of  law  it  is  worth 
note  that  an  administrative  body  should  never  be  made  a 
defendant  in  its  official  capacity;  the  suit  should  always 
be  brought  against  the  persons  composing  the  board  as 
private  parties.  The  theory  that  the  administration  can- 
not do  a  wrong  act  does  not  go  so  far  in  the  protection 
of  the  administration  as  to  the  individuals  composing 
the  administration ;  no  immunity  can  be  invoked  by  them. 
(42) 


Ch.   2]  POSITION  OP  THE  ADMINISTRATION.  §    12 

This  same  distinction  may  be  taken  in  the  case  of  a 
single  public  officer  as  well;  he  also  may  be  conceived 
of  in  one  view  as  an  official,  in  another  view  as  an  in- 
dividual. Gidley  v.  Palmerston,  3  Brod.  &  Bing.  275 
(1835),  is  often  cited  to  this  effect.  One  Holland  was 
a  retired  clerk  upon  a  retiring  allowance  of  £200  a  year; 
he  had  become  embarrassed  in  his  pecuniary  relations; 
and  the  Paymaster-General  had  suspended  a  part  of  his 
allowance  to  accrue  as  a  fund  for  liquidating  the  claims 
of  certain  half-pay  officers,  widows  and  other  persons 
upon  the  compassionate  list,  for  whom  Holland  had  act- 
ed as  agent.  The  executor  of  Holland  now  sued  Lord 
Palmerston,  Paymaster-General,  in  assumpsit,  alleging 
that  Parliament  had  placed  sufficient  funds  at  his  dis- 
posal to  pay  the  allowance,  whereupon  it  became  his  duty 
to  pay  it  over  in  each  year,  wherefore  he  might  be  said 
to  have  promised  to  pay  it  over. 

Dallas,  Chief  Justice,  took  this  difference  :  On  these 
facts  the  question  arises:  whether,  upon  all  or  any  of 
the  counts  in  the  declaration,  the  present  action  can  be 
maintained;  and  we  think  that  it  cannot  be  maintained. 
It  is  not  pretended  that  the  defendant  is  to  be  charged 
in  respect  of  any  express  undertaking  or  agreement  be- 
tween him  and  the  testator,  or  in  respect  of  any  other 
character  than  his  public  and  official  character  of  Secre- 
tary at  War.  On  principles  of  public  policy,  an  action 
will  not  lie  against  persons  acting  in  a  public  character 
and  situation,  which  from  their  very  nature  would  ex- 
pose them  to  an  infinite  multiplicity  of  actions;  that 
is  to  actions  at  the  instance  of  any  person  who  might 
suppose  himself  aggrieved;  and  though  it  is  to  be  pre- 
sumed that  actions  improperly  brought  would  fail,  and 
it  may  be  said  that  actions  properly  brought  should  suc- 

t3) 


<    12  ADMINISTRATIVE    LAW.  [Ch.   2 

ceed;  yet,  the  very  liability  to  an  unlimited  multiplicity 
of  suits,  would,  in  all  probability,  prevent  any  proper 
or  prudent  person  from  accepting  a  public  situation  at 
the  hazard  of  such  peril  to  himself. 

An  official,  therefore,  cannot  be  sued  in  his  official  ca- 
pacity, since  that  would  involve  a  questioning  of  the 
validity  of  an  official  act,  a  thing  inconceivable;  but  well 
enough  an  officer  may  be  sued  in  his  private  capacity, 
since  that  involves  the  determination  of  the  question 
whether  his  act  was  an  official  act  done  in  pursuance  of 
law  or  whether  the  action  was  without  justification  of 
law;  for  in  the  latter  case  the  act  is  as  much  a  private 
wrong  as  if  done  by  any  private  person.  That  is  the  dis- 
tinction taken  in  the  cases  cited  at  this  point ;  it  is  stated 
absolutely  here,  since  these  are  general  principles  of  ad- 
ministrative law,  it  remains  to  work  the  law  out  in  more 
detail  when  the  law  governing  administration  will  be 
scon  to  be  more  complex.9 

9  Responsibility  of  the  Officer. — Rogers  v.  Dutt.  13  Moo.  P.  C. 
236;  Gidley  v.  Palmerston,  3  Brod.  &  B.  275;  Raleigh  v.  Gosehen 
[1898]  1  Ch.  73;  Baker  v.  Ranney.  12  Grant  Ch.  228;  Kearney  v. 
Creelman,  16  N.  S.  228;  Amy  v.  Supervisors,  11  Wall.  136;  United 
States  v.  Lee,  106  U.  S.  196;  Coblens  v.  Abel.  Wool  worth  293; 
Eslava  v.  Jones,  83  Ala.  139;  McClure  v.  Hill,  36  Ark.  268:  Ex 
Parte  Tinkum,  54  Cal.  201;  Thames  Mfg.  Co.  v.  Lathrop,  7  Conn. 
557:  Denver  v.  Dean,  10  Colo.  375;  Dowling  v.  Bowden,  25  Fla.  712; 
Collins  v.  McDaniel,  66  Ga.  203;  Strickfaden  v.  Zipprick.  49  111. 
286;  Jarratt  v.  Gwathmey,  5  Blackf.  237;  MeCord  v.  High.  24  la.  336; 
Bridge  Co.  v.  County  Com'rs,  10  Kan.  326;  Marksberry  v.  Beasley. 
8  Ky.  L.  Rep.  534;  State  v.  Mason,  43  La.  Ann.  590;  Hayes 
v.  Porter,  22  Me.  371;  Akin  v.  Denny,  37  Md.  81;  Keenan  v.  South- 
worth,  110  Mass.  474;  Raynsford  v.  Phelps,  43  Mich.  342;  State  v. 
Coon,  14  Minn.  456;  Baugh  v.  Lamb.  40  Miss.  493;  St.  Joseph  Ins. 
Co.  v.  Leland,  90  Mo.  177;  Merritt  v.  McNally,  14  Mont.  228;  Miller 
v.  Roby,  9  Neb.  471;  State  v.  Kruttschnitt,  4  New  178;  Orr  v. 
Quimby,  54  N.  H.  590;  Bonnel  v.  Dunn,  28  N.  J.  L.  153:  Hover  v. 
Barkhoof.  44  N.  Y.  113;  Holt  v.  McLean.  75  N.  C.  347;  Murphy  v. 
(44) 


Ch.    2]  POSITION  OF  THE  ADMINISTRATION.  £    13 

§  13.     Public  action. 

Such,  therefore,  is  the  responsibility  of  the  officer  to 
the  law  of  the  land  by  the  common  law  principle.  It  is 
a  rule  almost  without  exception  that  the  officer  may  be 
impleaded  for  any  wrong  act  done  in  the  course  of  ad- 
ministration as  a  private  wrongdoer  may  be.  If  this  is 
the  end  of  the  matter  the  state  in  time  of  stress  can 
never  obtain  vigorous  enforcement  of  the  law,  it  must  be 
admitted.  But  may  the  state  not  protect  its  officers 
from  suits  based  upon  acts  done  in  the  course  of  admin- 
istration by  some  special  legislation,  and  thereby  may 
not  the  situation  be  saved?  This  was  the  gist  of  Mitch- 
ell v.  Clark,  110  U.  S.  G33.  An  officer  of  the  United 
States  forces  during  the  rebellion  had  seized  and  with- 
held from  the  owners  two  store-houses  in  St.  Louis,  and 
this  was  a  suit  for  the  rent  due  for  these  three  months. 
Among  other  defenses  the  defendant  pleaded  12  United 
States  Statutes,  755,  Section  4,  as  follows  :  That  any  or- 
der of  the  President,  or  under  his  authority,  made  at  any 
time  during  the  existence  of  the  present  rebellion,  shall 
be  a  defense  in  all  courts  to  any  action  or  prosecution, 
civil  or  criminal,  pending  or  to  be  commenced,  for  any 
search,  seizure,  arrest  or  imprisonment,  made,  done  or 
committed,  or  acts  to  be  done  under  or  by  virtue  of  such 
order,  or  under  color  of  any  act  of  Congress,  and  such 
defense  may  be  made  by  special  plea  or  under  the  gen- 
eral issue.  In  pursuance  of  this  statute,  the  officer  made 
defendant  introduced  in  evidence  a  military  order  issu- 
ing frpm  Washington  conveyed  to  him  by  the  General  in 
command  of  his  department. 

Holurook,  20  Oh.  St.  137;  Work  v.  Hoofnagle,  1  Yeates  506;  State 
v.  Ruth,  ft  S.  Dak.  84;  Alvord  v.  Barrett,  16  Wis.  175:  Richmond 
v.  Long's  Adm'rs,  17  Grat.  375. 

(45) 


g    13  ADMINISTRATIVE    LAW.  J  Ch.    2 

Mr.  Justice  Mii.lkk.  after  reciting  the  facts  in  the  fore- 
going  language,  continued:  It  is  not  at  all  difficult  to 
discover  the  purpose  of  all  this  legislation.    Throughout 

a  large  part  of  the  theatre  of  the  civil  war  the  officers 
of  the  army  as  well  as  many  civil  officers  were  engaged 
in  the  discharge  of  very  delicate  duties  among  a  class  of 
people  who,  while  asserting  themselves  to  be  citizens  of 
the  United  States,  were  intensely  hostile  to  the  govern- 
ment, and  were  ready  and  anxious  at  all  times,  though 
professing  to  be  noneombatants,  to  render  every  aid  in 
their  power  to  those  engaged  in  active  efforts  to  over- 
throw the  government  and  destroy  the  union.  Some  spe- 
cial statutes  were  passed  after  delay  of  a  general  charac- 
ter, but  it  was  soon  seen  that  many  acts  had  probably 
been  done  by  these  officers  in  defense  of  the  life  of  the  na- 
tion for  which  no  authority  of  law  could  be  found,  though 
the  purpose  was  good  and  the  act  a  necessity.  That  an 
act  passed  after  the  event  which  in  effect  ratifies  what 
has  been  done,  and  declares  that  no  suit  shall  be  sus- 
tained against  the  party  acting  under  color  of  authority, 
is  valid,  so  far  as  Congress  could  have  conferred  author- 
ity before,  admits  of  no  doubt.  These  are  ordinary  acts 
of  indemnity  passed  by  all  governments  when  occasion 
requires  it. 

That  is  the  gist  of  this  case:  These  are  ordinary  acts 
of  indemnity  passed  by  all  governments  when  occasion 
requires  it.  The  inquiry  at  once  presents  itself,  how  can 
such  an  act  stand  as  constitutional  in  the  United  States? 
Such  a  statute  applied  to  matters  between  man  and  man 
could  not  be  valid;  it  would  deprive  the  party  wronged 
of  his  fundamental  rights.  Yet  it  is  allowed  to  be  due 
process  of  law  to  protect  an  officer  from  the  consequences 

(46) 


Ch.    2]  POSITION  OF  THE  ADMINISTRATION.  g    13 

of  an  act  done  in  the  course  of  administration,  and  prop- 
erly so  since  this  is  the  exercise  of  an  indispensable  gov- 
ernmental power  in  the  last  analysis.  This  can  apply  of 
course  only  to  the  ratification  of  such  acts  as  there  was 
constitutional  power  in  Congress  to  have  authorized  if 
it  had  acted  in  advance.  It  must  always  happen  that  in 
a  few  cases  for  acts  performed  in  good  faith  in  the  pres- 
ence of  an  overpowering  emergency  there  would  be  no 
constitutional  power  to  make  them  good  by  subsequent 
legislation,  since  there  would  have  been  no  power  to  au- 
thorize the  seizure  or  the  arrest  by  precedent  legislation. 

Another  class  of  statutes  for  the  exoneration  of  pub- 
lic officers  is  much  more  equitable  for  all  concerned. 
An  example  of  this  sort  is  United  States  v.  Sherman, 
98  (\  S.  565  (1878).  This  was  an  application  for  a  man- 
damus to  John  Sherman,  Secretary  of  the  Treasury,  com- 
manding him  to  pay  to  Alexander  McLeod,  the  relator, 
the  sum  of  .^4,279.94,  with  interest.  It  appeared  that 
the  relator  had  recovered  judgment  against  one  T.  C. 
Callicott,  a  supervising  special  agent  of  the  Treasury 
Department.  The  relator  thereupon  applied  to  the  court 
for  a  certificate  of  probable  cause  under  12  United  States 
Statutes,  711;  he  thereupon  presented  the  certificate  to 
the  Treasury  Department;  where  he  was  refused  pay- 
ment of  full  interest. 

Mr.  Justice  STRONG  refused  the  writ  as  prayed  for: 
The  twelfth  section  of  the  act  of  Congress  of  March  3, 
1863,  relative  to  suits  against  revenue  officers,  enacted 
that  where  a  recovery  shall  be  had  in  any  such  suit,  ami 
the  court  shall  certify  that  there  was  probable  cause 
for  the  act  done  by  the  collector  or  other  officer,  or  that 
he  acted  under  direction  of  the  Secretary  of  the  Treas- 

(47) 


§   13  ADMINISTRATIVE    LAW.  [Ch.    2 

ury  or  other  proper  officer  of  the  government,  no  exe- 
cution shall  issue  against  the  collector  or  other  officer, 
but  the  amount  so  recovered,  shall  upon  final  judgment 
be  provided  for  and  paid  out  of  the  treasury.  When 
the  certificate  is  thus  given,  the  claim  of  the  plaintiff 
in  the  suit  is  practically  converted  into  a  suit  against 
the  government,  but  not  until  then;  thus  interest  runs 
from  that  time,  not  sooner. 

In  any  usual  conditions  of  government,  this  is  a  so- 
lution of  the  general  problem  that  will  commend  itself. 
In  those  usual  conditions  it  is  only  fair  that  the  gov- 
ernment itself  should  exonerate  the  officer  from  the  con- 
sequences of  an  act  done  with  probable  cause  in  the 
course  of  administration;  and  in  especial  that  seems  the 
right  of  the  matter  when  an  act  of  a  subordinate  officer 
is  in  question  which  has  been  done  in  accordance  with 
express  orders  of  his  superior  officer.  If  there  is  no 
such  general  statute,  the  officer  may  hope  with  some 
confidence  from  a  special  statute  for  his  special  case. 
if  it  is  clear  that  his  act  \v;is  <\(\iw  with  probable  cause 
in  the  course  of  the  execution  of  the  law.  More  than 
that,  since  this  is  also  the  view  of  the  internal  law  of 
the  administration  that  inferior  officers  ought  act  in 
obedience  to  their  superiors,  the  administration  will  do 
its  best  to  relieve  its  officers  against  the  consequences 
of  such  proper  obedience.  One  common  practice  is  to 
put  the  forces  of  the  office  of  the  Department  of  Justice 
at  the  disposal  of  the  officers  to  present  his  defense. 
And  the  disbursing  side  of  the  Treasury  Department  has 
been  known  to  be  so  bold  as  to  allow  the  costs  of  litiga- 
tion to  an  officer  as  expense  incurred  in  the  course  of 
duty.1" 

10  Public  Action.— Gidley   v.   Palmerston,   3   B.   &   B.    275;    Grant 
(48) 


Ch.    2]  POSITION  OF  THE  ADMINISTRATION.  §   14 

§  14.     Official. 

The  condition  of  the  law  governing  administration 
being  this,  that  the  administration  itself  could  not  be 
sued,  but  any  member  of  the  administration  might  be, 
the  attempt  has  often  been  made  in  appreciation  of  this 
situation  to  bring  a  suit  against  the  individual  officer, 
when  in  truth  what  is  wished  is  to  get  relief'  against 
the  state  itself  by  force  of  the  proceeding  against  the 
officer.  A  late  case  reviewing  the  failure  of  this  at- 
tempt is  the  elaborate  case  of  Pennoyer  v.  McConnaughy, 
140  U.  S.  1  (1891).  This  was  an  equitable  suit  against 
the  Governor,  Secretary  of  State,  and  Treasurer  of  Ore- 
gon, who  comprised  the  Board  of  Land  Commissioners, 
to  restrain  and  enjoin  them  from  selling  and  conveying 
a  large  tract  of  land  to  which  plaintiff  claimed  title. 
An  act  of  the  Legislature  of  Oregon  had  required  the 
Board  of  Commissioners  to  cancel  such  certificates  as 
his,  in  pursuance  of  which  the  commissioners  were  act- 
ing. There  was  a  demurrer  to  the  bill  on  the  ground 
that  the  suit  was  in  substance  against  the  state. 

Mr.  Justice  Lamar  delivered  the  opinion  of  the  court : 
The  immunity  of  a  state  from  suit  is  absolute  and  tin- 
qualified,  and  the  constitutional  provision  securing  it 
is  not  to  be  construed  so  as  to  place  the  state  within  the 
reach  of  the  process  of  the  court.  Accordingly,  it  is 
equally  well  settled  that  a  suit  against    the  officers  of 

v.  Secretary,  2  C.  P.  D.  445;  Dinsman  v.  Wilkes,  12  How.  390; 
Mitchell  v.  Clark,  110  U.  S.  633;  United  States  v.  Sherman,  93 
U.  S.  565;  Bayard  v.  United  States,  127  U.  S.  246;  Little  Rock,  etc.,  R. 
R.  Co.  v.  Wort  hen.  46  Ark.  312;  Sumner  v.  Beeler,  50  Ind.  341; 
State  v.  Burke,  33  La.  Ann.  512;  Warren  v.  Kelley,  80  Me.  512; 
Fisher  v.  McGirr,  1  Gray,  1;  State  v.  Godwin,  123  N.  C.  697;  Wil- 
liams v.  Schmidt,  14  Ore.  470;  Campbell  v.  Sherman,  35  Wis.  103. 

(49) 
Adm.  Law — 4. 


g    14  ADMINISTRATIVE  LAW.  [Ch.    2 

a  state  to  compel  them  to  do  acts  which  constitute  a 
performance  by  it  of  its  contracts,  is,  in  effect,  a  suit 
against  the  state  itself.  In  application  of  this  latter 
principle  two  classes  of  cases  have  appeared  in  the  de- 
cisions of  this  court,  and  it  is  in  determining  to  which 
class  a  particular  case  belongs  that  differing  views 
have  been  presented.  The  first  class  is  where  the  suit 
is  brought  against  the  officers  of  the  state  as  represent- 
ing the  state's  action  and  liability,  thus  making  it, 
though  not  a  party  to  the  record,  the  real  party  against 
which  the  judgment  will  so  operate  as  to  compel  it 
specifically  to  perform  its  contracts.  The  other  class 
is  where  a  suit  is  brought  against  defendants  who,  claim- 
ing to  act  as  officers  of  the  state,  and  under  the  color 
of  an  unconstitutional  statute,  commit  acts  of  wrong 
and  injury  to  the  rights  and  property  of  the  plaintiff 
acquired  under  a  contract  with  the  state.  Such  suit 
whether  brought  to  recover  money  or  property  in  the 
hands  of  such  defendants,  unlawfully  taken  by  them  in 
behalf  of  the  state,  or  for  compensation  in  damages,  or 
in  a  proper  case  where  the  remedy  at  law  is  inadequate 
for  an  injunction  to  prevent  such  wrong  and  injury,  or 
for  a  mandamus  in  a  like  case  to  enforce  upon  the  de- 
fendant the  performance  of  a  plain  legal  duty,  purely 
ministerial — is  not  within  the  meaning  of  the  eleventh 
amendment  an  action  against  the  state.  It  cannot  be 
said,  therefore,  that  this  is  a  suit  against  the  state,  with- 
in that  amendment. 

This  general  controversy  has  been  of  great  historical 
importance  in  the  constitutional  history  of  the  United 
States.  Again  and  again,  when  some  one  or  other  of 
(50) 


Ch.   2]  POSITION  OF  THE  ADMINISTRATION.  §   14 

the  states  has  attempted  to  stand  upon  its  immunity 
as  a  state,  suit  after  suit  has  been  instituted  against 
the  officers  of  the  state.  In  truth  these  officers  in  all 
of  these  suits  were  but  obeying  the  orders  of  their  gov- 
ernments, but  that  has  not  been  always  conceded  in  a 
straightforward  manner ;  indeed  the  state  has  not  al- 
ways gotten  its  full  immunity;  there  has  been  some  suc- 
cess in  this  campaign  to  get  at  the  state  through  suits 
against  the  officers  of  the  state.  The  opinion  just  quot- 
ed is  the  outcome  of  long  years,  and  such  as  it  is,  it 
represents  the  American  view  upon  this  problem  of  ad- 
ministrative law. 

It  may  often  be  a  difficult  question  to  decide  wheth- 
er in  any  particular  case  the  suit  is  in  substance  against 
the  state  or  in  truth  simply  against  the  officer.  Bel- 
knap v.  Sehild,  161  U.  S.  10  ( 1896)  is  hard  to  disentangle, 
since  in  part  it  is  against  the  government  and  in  part 
against  the  officer,  as  will  appear.  This  bill  for  an  in- 
junction was  filed  by  the  owners  of  letters  patent  for 
an  improvement  in  caisson  gates,  and  alleged  that  the 
defendants  infringed  the  patent  by  manufacturing  and 
using  such  gates.  In  the  defendants'  plea  to  the  whole 
bill,  and  in  that  of  the  Attorney-General  on  behalf  of 
the  United  States,  the  single  ground  of  each  was 
that  the  only  caisson  gate  that  the  defendants  had 
any  relation  with  was  not  made  by  them  and  was  not 
used  by  them  for  their  own  benefit,  but  was  made  and 
used  by  the  United  States  in  ;i  dry  dock  at  a  navy  yard, 
and  the  defendants  only  operated  it  and  used  it  as 
commandant,  constructor,  officer,  servant  and  employee 
of  the  United  States. 

Mr.  Justice  Gray  treated  the  question  with  great  con- 

(51) 


g   14  ADMINISTRATIVE  LAW.  [Ch.   2 

sideration:  The  fact  so  pleaded  and  suggested  could 
not  consistently  with  previous  decisions  prevent  the  de- 
fendants from  being  held  liable  to  the  patentee  for  their 
own  infringement  of  his  patent.  There  was  no  error, 
therefore,  in  the  overruling.  But  the  Circuit  Court  erred 
in  awarding  an  injunction  against  the  defendants.  In 
the  present  case,  the  caisson  gate  was  a  part  of  the  dry- 
dock  in  a  navy  yard  of  the  United  States.  The  United 
States  then  had  both  the  title  and  the  possession  of  the 
property.  Although  this  suit  was  not  brought  against 
the  United  States  by  name,  but  against  their  officers 
and  agents  only,  nevertheless  so  far  as  the  bill  prayed 
for  an  injunction,  the  United  States  was  the  only  real 
part}*,  against  whom  alone  in  fact,  the  relief  was  asked, 
and  against  whom  the  decree  would  effectively  operate ; 
the  plaintiff  sought  to  control  the  defendants  in  their 
official  capacity,  and  in  the  exercise  of  their  official  func- 
tions, as  representatives  and  agents  of  the  United  States ; 
and  thereby  to  defeat  the  use  by  the  United  States  of 
property  owned  and  used  by  the  United  States  for  the 
common  defense  and  general  welfare ;  and  therefore  the 
United  States  was  an  indispensable  party  to  enable  the 
court,  according  to  the  rules  which  govern  its  procedure, 
to  grant  the  relief  sought;  and  the  suit  could  not  be 
maintained  without  violating  the  principles  affirmed  in 
a  long  series  of  decisions  of  this  court. 

This  case  opens  a  new  field  of  inquiry.  This  is  the 
end  of  immunity  and  the  beginning  of  liability.  It  is 
important  that  suit  against  the  administration  in  what- 
ever form  must  always  fail;  and  as  was  said  in  the 
preface  to  this  chapter,  that  is  a  fundamental  condition 
(52) 


Ch.   2]  POSITION  OF  THE  ADMINISTRATION.  §   15 

under  which  administration  must  go  on  under  our  sys- 
tem. But  it  is  of  overshadowing  importance  that  of 
every  act  done  in  administration  by  any  officer  there 
may  be  judicial  inquiry;  and  for  every  act  done  in  the 
execution  of  law  by  any  officer  without  justification  of 
law  there  may  be  judgment  against  the  officer.  That 
is  an  elementary  proposition  in  administrative  law 
under  our  system — the  responsibility  of  every  public 
officer  to  the  law  of  the  land  for  every  act  done  in  ad- 
ministration.11 

§  15.     Personal. 

This,  then,  is  a  first  principle  in  our  administrative 
law :  that  the  officer  may  always  be  impleaded  as  a  pri- 
vate individual.  A  few. cases  from  the  mass  of  the  au- 
thorities only  need  be  recited  for  the  principal  doctrine. 
Mostyn  v.  Fabrigas,  1  Cowp.  161  (1771),  has  been  often 
remarked.  This  was  an  action  by  Fabrigas  against  Mos- 
tyn  brought  in  the  English  Common  Pleas  for  false  im- 
prisonment for  a  period  of  eight  months  in  the  Island 
of  Minorca.  The  defendant  pleaded  a  special  justifica- 
tion that  he  was  at  the  time  Governor  of  Minorca,  and 

ii  Official. — Osborn  v.  Bank,  9  Wheat.  738;  Louisiana  v.  Jumel, 
107  U.  S.  711;  Poindexter  v.  Greenhow,  114  U.  S.  270;  In  Re  Ayers, 
123  U.  S.  443;  Pennoyer  v.  McConnaughy,  140  U.  S.  1;  United 
States  v.  Clark,  31  Fed.  710;  In 'Re  Fair,  100  Fed.  149;  Wolffe  v. 
State,  79  Ala.  201;  Lee  v.  Huff,  61  Ark.  494;  Nougues  v.  Douglass, 
7  Cal.  65;  Sharps'  Mfg.  Co.  v.  Rowan,  34  Conn.  332;  McCord  v.  High,  24 
la.  336;  Strickfaden  v.  Zipprick,  49  111.  286;  Lecourt  v.  Gaster, 
50  La.  Ann.  521;  Michigan  Bank  v.  Hastings,  1  Doug.  241;  New- 
man v.  Elam,  30  Miss.  507;  Beckham  v.  Nacke,  56  Mo.  546;  Northern 
Pac.  R.  Co.  v.  Carland,  5  Mont.  146;  State  v.  Kruttschnitt,  4  Nev. 
178;  Scudder  v.  Trenton,  etc.,  Co.,  1  N.  J.  Eq.  694;  Woolley  v.  Bald- 
win, 101 -N.  Y.  688;  Yealy  v.  Fink,  43  Pa.  St.  212;  Water  Power  Co.  v. 
Electric  Co.,  43  S.  C.  168;  McKinney  v.  Robinson,  84  Tex.  489;  Kerr 
v.  Woolley,  3  Utah  456;  Board  of  Public  Works  v.  Gannt,  76  Va.  455. 

(53) 


§   15  ADMINISTRATIVE  LAW.  [Ch.    2 

that  as  such  he  ordered  the  arrest  and  imprisonment; 
wherefore,  he  prayed  judgment.  At  the  trial  the  jury 
gave  a  verdict  for  the  plaintiff  with  £3,000  damages. 

Lord  Mansfield  said:  To  lay  down  in  an  English 
court  of  justice  such  a  monstrous  proposition  as  that 
a  governor  acting  by  virtue  of  letters  patent  under  the 
great  seal  is  accountable  only  to  God,  and  his  own  con- 
science; that  he  is  absolutely  despotic,  and  can  spoil, 
plunder  and  affect  his  Majesty's  subjects,  both  in  their 
liberty  and  property,  with  immunity, — is  a  doctrine  that 
cannot  be  maintained.  Therefore,  in  every  light  in 
which  I  see  the  subject,  I  am  of  opinion  that  the  ac- 
tion holds  emphatically  against  the  governor,  if  it  did 
not  hold  in  the  case  of  any  other  person. 

As  a  matter  of  constitutional  history  in  England,  this 
is  the  final  and  emphatic  case  which  marks  the  asser- 
tion of  the  principal  doctrine  beyond  any  subsequent 
question.  In  this  same  last  quarter  of  the  eighteenth 
century  the  whole  doctrine  hung  in  the  balance  in  the 
cases  of  the  general  warrants  where  the  government 
openly  demanded  the  immunity  of  its  officers  from  judi- 
cial inquiry.  Since  those  times  it  has  been  common 
knowledge  that  any  officer  may  be  sued.  Indeed,  suits 
against  officers  are  of  such  every-day  occurrence  in  the 
courts  that  it  causes  no  comment  whatever  when  a  pub- 
lic officer  is  a  party  defendant.  It  is  rather  a  thing 
contemplated  in  taking  public  office;  for  few  can  serve 
a  term  in  any  position  of  importance  without  being  sum- 
moned into  the  courts  again  and  again.  Under  so  rigid 
a  limitation  as  this,  administration  must  proceed  in  a 
system  like  ours  where  the  law  of  the  land  is  supreme 
over  all  persons  alike,  of  whatever  station  they  may  be. 
(54) 


Ch.  2]  POSITION  OF  THE  ADMINISTRATION.  §    15 

That  principle  which  makes  any  officer  under  any 
circumstances  liable  in  damages  for  any  act  done  in  en- 
forcement of  the  law  which  may  prove  to  have  been  done 
without  justification  of  law,  when  the  matter  is  later 
examined,  was  not  pushed  to  extreme  cases  without  liti- 
gation. As  important  a  state  trial  as  one  can  find  in 
the  Supreme  Court  is  Little  v.  Barreme,  2  Cr.  170 
(1804).  On  the  2nd  of  December,  171)0,  the  Danish 
brigantine  Flying  Fish,  Barreme,  owner,  was  captured 
near  the  island  of  Hispaniola  by  the  American  frigate 
Boston  upon  suspicion  of  violating  the  non-intercourse 
act.  Captain  Little,  the  Commander  of  the  Boston,  act- 
ed in  strict  accordance  with  orders  of  the  President  of 
the  United  States  in  making  the  seizure;  it  later  ap- 
peared in  proof  that  the  Flying  Fish  had  not  in  trutl 
violated  the  statute;  thereupon  damages  were  ass 
against  Little. 

Chief  Justice  Marshall  delivered  the  opinion :  I 
was  at  first  strongly  inclined  to  think  that  where  in 
consequence  of  orders  from  legitimate  authority  a  ves- 
sel is  seized  with  pure  intention  the  claim  of  the  in- 
jured party  for  damages  would  be  against  that  govern- 
ment from  which  the  orders  proceeded,  and  would  be 
a  proper  subject  for  negotiation.  But  I  have  been  con- 
vinced that  I  was  mistaken  and  1  have  receded  from  this 
firsl  opinion.  I  acquiesce  in  that  of  my  brethren  which 
is  that  the  instructions  cannot  change  the  nature  of 
the  transaction  or  legalize  an  act  which  without  those 
instructions  would  have  been  a  plain  trespass.  It  be- 
comes then  unnecessary  to  inquire  whether  probable 
cans*'  exists;  Captain  Little,  then,  must  be  answerable 
in  damages. 

(55) 


g   16  ADMINISTRATIVE  LAW.  [Ch.    2 

The  great  risks  in  accepting  public  office  in  this  state 
of  the  law  have  been  commented  upon  again  and  again. 
In  brief,  they  arc  these:  If  any  person  imagine  that 
he  has  been  aggrieved  by  any  public  officer,  if  he  be- 
lieves any  public  officer  to  blame  for  any  damages  he 
may  have  suffered,  he  may  bring  a  suit  against  the  of- 
ficer; even  if  successful  in  that  litigation,  the  officer  is 
put  to  the  delays  and  expenses  of  litigation.  More  than 
that,  if  that  officer,  it  may  be  proved,  has  deviated  ever 
so  little  from  his  legal  authority,  if,  with  the  best  of 
intention  or  with  the  best  of  intelligence,  he  makes  a 
mistake  of  law  in  interpreting  his  powers,  or  if  he  makes 
a  mistake  of  fact  applying  the  law  to  a  particular  case, 
he  is  by  the  principal  doctrine,  if  applied  to  its  logical 
conclusion,  liable  as  a  private  wrong-doer,  and  respon- 
sible in  such  damages  as  may  be  proved.12 

§  16.     Conclusion. 

The  necessary  thing  now  is  to  accommodate  these 
two  doctrines.  On  the  one  hand  is  the  law  that  in  gov- 
ernmental action  the  officer  is  irresponsible;  on  the 
other  hand  is  the  law  that  in  personal  action  the  officer 
is  responsible.  The  problem  is  to  protect  the  officer 
from  the  crushing  effect  of  these  rules.  This  is  done  in 
this  wise:     If  the  officer  does  an  act  in  the  course  of 

12  Personal. — Ashby  v.  White,  2  Ld.  Raym.  938;  Entick  v.  Car- 
ringtcn.  2  Wils.  275;  Amy  v.  Supervisors,  11  Wall.  136;  Belknap 
v.  Schild,  161  U.  S.  10;  Briggs  v.  Coleman,  51  Ala.  561:  McClure 
v.  Hill,  36  Ark.  268;  Hartford  Bank  v.  Waterman,  26  Conn.  324; 
Collins  v.  McDaniel,  66  Ga.  203;  Porter  v.  Thomson,  22  la.  391; 
Lecourt  v.  Gaster,  50  La.  Ann.  521;  Nowell  v.  Wright,  3  Allen  166; 
Amperse  v.  Winslow,  75  Mich.  234;  Merritt  v.  McNally.  14  Mont. 
228;  Bassett  v.  Fish.  75  N.  Y.  303;  Holt  v.  McLean.  75  N.  C.  347: 
State  v.  Doyle,  40  Wis.  204. 

(56) 


Ch.   2]  POSITION  OF  THE  ADMINISTRATION.  §    1,, 

administration  it  will  be  held  a  governmental  act  if  it 

is  within  his  authority.  Ad  act  is  within  his  authority 
if  it  is  within  his  discretion.  Therefore,  if  any  officer 
act  within  the  discretion,  discretion  which  has  been  vest- 
ed in  him,  he  is  irresponsible.  Only  if  the  duty  of  the 
officer  left  no  discretion  to  him  in  the  premises,  can 
it  be  said  with  truth  that  what  he  does  contrary  to  that 
duty  is  his  personal  act,  for  which  he  should  be  held 
liable  as  a  private  person.  In  this  way  an  official  gets 
protection  in  most  of  his  action  in  the  course  of  admin- 
istration. 

There  is  danger  in  too  great  insistence  upon  the  neg- 
ative doctrine  applicable  only  to  improper  administra- 
tion, that  when  there  is  no  justification  of  law  the  offi- 
cer will  be  liable.  For  the  positive  doctrine  applicable 
to  proper  administration,  that  when  there  is  justification 
of  law  the  officer  is  not  liable,  may  be  for  the  moment 
forgotten.  One  such  case  is  State  v.  Knoxville,  12  Lea, 
146.  This  was  an  indictment  for  nuisance.  In  the 
proof  it  appeared  that  because  of  an  epidemic  of  the 
smallpox  the  public  authorities  in  the  City  of  Knox- 
ville had  been  driven  to  active  measures  to  prevent  the 
spread  of  the  disease.  Among  the  precautionary  meas- 
ures taken,  the  clothing,  beds  and  bedsteads  used  by 
persons  who  had  the  disease  at  the  pest  house  were  reg- 
ularly burned  in  pits  upon  the  hospital  grounds.  The 
smoke  and  scent  of  these  fires  were  at  times  offensive 
to  people  living  in  the  immediate  vicinity. 

Upon  these  facts  Mr.  Justice  Freeman  delivered  the 
only  opinion  possible:  There  are  cases  when  it  becomes 
necessary  for  the  public  authorities  to  interfere  with  the 
control  by  parties  of  their  property,  and  even  destroy  if, 

(57) 


§   16  ADMINISTRATIVE  LAW.  [Ch.   2 

where  some  controlling  public  necessity  demands  the 
interference  or  destruction.  A  strong  instance  of  this 
description  is  where  it  becomes  necessary  to  take  or  de- 
stroy the  private  property  of  individuals  to  prevent  the 
spreading  of  a  fire,  the  ravages  of  a  pestilence,  the  ad- 
vance of  a  hostile  army,  or  any  public  calamity.  The 
rule  applicable  to  the  present  case  is  therefore  that  if 
the  act  was  done  by  public  authority  or  sanction,  and  in 
good  faith  and  was  done  for  the  public  safety  aud  to 
prevent  the  spread  of  disease,  and  such  means  used  as 
are  usually  resorted  to  and  approved  by  medical  science 
in  such  cases,  and  was  done  with  reasonable  care  and 
regard  for  the  safety  of  others,  then  the  parties  were 
justified  in  what  they  did. 

Here  the  action  by  the  public  officers  was  justified, 
because  the  law  is  that  under  such  circumstances  the 
steps  taken  were  proper.  This  principle  in  its  innumer- 
able applications  is  at  the  bottom  of  most  of  the  body 
of  administrative  law  which  is  the  subject  of  this  trea- 
tise. Indeed,  the  elaboration  of  this  conception,  that 
authority  of  the  law  must  always  be  found  for  admin- 
istrative action,  is  the  real  substance  of  any  discussion 
of  administrative  law  under  our  system.  Whatever 
scope  the  administration  may  claim  witli  us  must  be 
found  inside  the  law  upon  justification  there  by  author- 
ity shown,  and  not  outside  the  law,  for  no  defense  ex- 
ists. This  whole  doctrine  from  which  the  administra- 
tion has  its  authority,  and  under  which  administration 
goes  on,  will  receive  the  fullest  treatment  later  and  need 
not  be  anticipated. 

On  the  other  hand,  a  case  like  Mitchell  v.  Harmony.  L3 
How.  115  (1851),  must  be  reckoned  with.  This  other 
(58) 


Ch.    2]  POSITION  OF  THE  ADMINISTRATION.  £    16 

side  is  responsibility.  When  in  the  Mexican  war  Colonel 
Doniphan  commenced  his  march  for  Chihuahua,  Har- 
mony, a  trader,  followed  in  the  rear  with  a  mule  train 
and  sold  to  the  inhabitants,  as  opportunity  offered. 
But  after  they  had  entered  that  province  and  were  about 
to  proceed  in  an  attack  against  the  city  of  that  name, 
distant  about  three  hundred  miles,  Harmony  determined 
to  proceed  upon  no  such  hazardous  expedition.  When 
this  determination  was  made  known  to  the  commander 
he  gave  orders  to  Colonel  Mitchell  to  compel  him  to 
remain;  later  in  the  battle  of  Sacramento  his  wagons, 
mules,  and  goods  were  used  in  the  public  service,  and 
so  when  the  Mexicans  regained  possession  of  the  place 
all  his  property  was  lost. 

Chief  Justice  Taney  considered  the  various  aspects 
of  the  case  at  length :  The  instruction  is  objected  to 
on  the  ground  that  it  restricts  the  power  of  the  officer 
within  narrower  limits  than  the  law  will  justify.  And 
that  when  troops  are  employed  in  an  expedition  into 
an  enemy's  country,  where  the  dangers  that  meet  them 
cannot  always  be  foreseen  and  where  they  are  cut  off 
from  aid  from  their  own  government,  the  commanding 
officer  must  necessarily  be  intrusted  with  some  discre- 
tionary power  as  to  the  measure  he  should  adopt;  and, 
if  he  acts  honestly,  and  to  the  best  of  his  judgment,  the 
law  will  protect.  But  it  must  be  remembered  thai  the 
question  here  is  not  as  to  the  discretion  he  may  exer- 
cise in  his  military  operations,  or  in  relation  to  those 
who  are  under  his  command.  His  distance  from  home 
and  the  duties  in  which  he  is  engaged,  cannol  enlarge 
his  power  over  the  property  of  a  citizen,  nor  give  to 
him  in  that  respect  any  authority  which  lie  would  not, 

(59) 


^    16  ADMINISTRATIVE  LAW.  [Ch.    2 

under  similar  circumstances,  possess  at  home.  And 
where  the  owner  has  done  nothing  to  forfeit  his  rights 
every  public  officer  is  bound  to  respect  them,  whether 
he  finds  the  property  in  a  foreign  or  hostile  country,  or 
in  his  own.  There  are  without  doubt  occasions  in  which 
private  property  may  lawfully  be  impressed  into  the 
public  service  or  taken  for  the  public  use.  Unquestion- 
ably, in  such  cases,  the  government  is  bound  to  make 
full  compensation  to  the  owner;  but  the  officer  is  not 
a  trespasser.  Every  ease  must  depend  upon  its  own 
circumstances.  It  is  the  emergency  that  gives  the  right 
and  the  emergency  must  be  shown  to  exist  before  the 
taking  can  be  justified.  In  deciding  upon  this  necessity, 
however,  the  state  of  the  facts  as  they  appeared  to  the 
officer  at  the  time  he  acted  must  govern  the  decision. 
But  it  is  not  sufficient  to  show  that  he  exercised  an 
honest  judgment  and  took  the  property  to  promote  the 
public  service;  he  must  show  by  proof  the  nature  and 
character  of  the  emergency  such  as  he  had  reasonable 
grounds  to  believe  it  to  be,  and  it  is  then  for  a  jury  to 
say,  whether  it  was  so  pressing  as  not  to  admit  of  de- 
lay. Xo  case  of  peril  or  danger  has  been  proved  which 
would  lay  a  foundation  for  taking  possession  of  the 
goods  of  Harmony  at  San  Elisario,  on  that  ground, 
either  as  respects  the  state  of  the  country  or  the  force  of 
the  public  enemy. 

There  is  no  privilege,  therefore,  for  administration; 
that  an  act  is  done  in  the  course  of  administration  is 
in  itself  no  defense.  It  is  to  be  remarked  that  the 
action  of  the  military  officer  in  the  case  last  discussed 
was  done  in  entire  good  faith  in  the  execution  of  an 
important  commission.  Proof  positive,  this  is,  that  the 
(60) 


Ch.  2]  POSITION  OF  THE  ADMINISTRATION.  K   16 

fact  that  an  act  was  done  in  the  course  of  administration 
constitutes  no  justification;  there  is  no  privilege  for 
the  officer  that  he  can  plead  as  any  mitigation.  If  no 
scope  should  be  given  an  administration  in  the  enforce- 
ment of  the  laws,  the  certain  result  would  be  inaction 
in  execution,  and  a  stoppage  in  the  affairs  of  the  gov- 
ernment; for  no  officer  would  act  promptly  if  he  must 
always  act  at  his  peril.  It  must  be  found  then,  upon 
further  examination  into  the  rule  that  the  officer  is 
answerable,  that  there  is  some  escape  from  it  in  some 
cases.  Whenever  an  officer  has  discretion  vested  in  him 
by  the  law  he  is  irresponsible  in  every  act  that  he  may 
do  within  that  discretion.  In  this  way  the  doctrine  of 
the  responsibility  of  the  officer  is  mitigated. 

(61) 


CHAPTER  III. 

THE  INDEPENDENCE  OF  THE  ADMINISTRATION. 

§  17.  Introduction. 

18.  Separation  of  Departments. 

19.  Independence. 

20.  Co-ordination. 

21.  Subordination. 

22.  Division  of  Functions. 

23.  Distribution. 

24.  Confusion. 

25.  Conclusion. 

§  17.     Introduction. 

In  every  government  constitutional  in  any  sense  there 
is  a  division  into  three  departments:  the  legislative,  the 
executive,  and  the  judicial.  Each  of  these  departments 
is  independent.  Its  independence  is  a  condition  to  be 
taken  into  the  account  in  any  discussion  of  the  position 
of  the  administration.  As  the  departments  are  co-or- 
dinate, the  executive  cannot  be  subordinated  to  either 
of  the  departments  by  any  means.  This  is  the  legal 
consequence  of  the  division  of  the  departments. 

The  separation  of  powers  in  government  must  be  taken 
into  the  same  account.  The  usual  distribution  will  fol- 
low the  same  division.  There  are  three  sorts  of  func- 
tions of  government:  legislative,  executive,  and  judicial. 
The  legislative  department  will  in  a  normal  case  exer- 
cise all  legislative  functions;  the  executive  department, 
all  executive  functions;  the  judiciary  department,  all 
judicial  functions.  Any  other  distribution  would  lead 
(62) 


Qh     31  ITS  INDEPENDENCE.  §   18 

to  a  confusion  of  powers.     This  is  the  legal  consequence 
of  the  separation  of  powers. 

§  18.     Separation  of  departments. 

In  last  analysis,  as  we  have  seen,  all  governmental 
power  relates  back  to  the  sovereign.  In  any  separation 
of  departments,  therefore,  each  department  exercises 
sovereignty;  each  in  its  own  sphere  is  beyond  control 
even  of  the  others.  What  division  of  powers  there  shall 
be  between  the  departments  is  a  high  question  of  state 
beyond  any  rules,  a  division  which  may  be  made  in  one 
way  in  one  nation,  or  in  another  way  in  another  nation. 
Forms  of  government  may  differ.  This  essential  unity 
back  of  it  all  in  government  as  a  whole  gives  political 
science  its  universal  character.  All  exercise  of  gov- 
ernmental power  through  all  the  departments  is  upon 
the  same  basis  then ;  and  therefore  it  is  not  an  abstract 
theory  which  makes  the  great  departments  of  govern- 
ment co-ordinate,  each  beyond  the  control  of  the  oth- 
ers in  its  action;  it  is  rather  a  fundamental  condition. 
As  this  discussion  goes  on,  the  precise  values  to  be  given 
to  the  various  rules  which  make  up  the  law  upon  the 
separation  of  powers  will  often  prove  to  involve  most 
subtle  distinctions,  it  is  feared. 

This  theory  of  the  necessary  separation  of  powers  in 
government  has  been  held  from  the  beginning  of  specu- 
lation upon  matters  of  state  to  be  an  elementary  prin- 
ciple. In  the  ancient  world  ARISTOTLE  in  his  Politics 
laid  it  down  as  accepted  thai  in  every  form  of  govern- 
ment there  are  three  departments, — these  three,  one  is 
the  part  that  deliberates,  the  second  is  that  which  has 
to  do  with   public  offices,  and    the  third   is   the  judicial 

(63) 


g   lg  ADMINISTRATIVE  LAW.  (Ch.  3 

part.  At  the  beginning  of  the  Rennaissance,  these  in- 
quiries began  anew;  that  most  remarkable  book  the  De- 
fensor Pacis  of  Maesillio  of  Padua,  in  intricate  way, 
sets  forth  the  essential  division  in  the  government  be- 
tween the  giving  of  law,  the  enforcing  of  it,  and  the 
judging  of  it.  Just  before  the  French  Eevolution  was 
a  time  of  speculation  in  theories  of  government  such  as 
the  world  has  never  seen ;  in  that  time  in  his  Esprit  de 
Lois,  Montesquieu  laid  down  the  theory  in  final  form: 
there  are  in  each  state  three  sorts  of  powers,  the  legis- 
lative power,  the  executive  power,  and  the  judicial 
power. 

The  direct  effect  of  this  theory  of  the  separation  of 
powers  in  determining  the  framework  of  governments 
in  the  United  States  can  be  proved  by  the  express  dec- 
larations of  the  makers  of  the  original  constitutions. 
No  one  with  any  acquaintance  with  the  literature  of 
that  period  can  have  any  doubt  that  his  theory  of  the 
separation  of  the  departments  is  at  the  basis  of  our 
constitutional  structure.  It  is  so  in  form  ;  in  the  typical 
constitution  in  the  United  States,  one  article  is  devoted 
to  the  construction  of  the  legislature,  another  article 
to  the  erection  of  the  judiciary,  another  to  the  creation 
of  the  executive.  The  suggestion  that  is  in  this  is  that 
the  three  departments  have  an  equal  origin  in  the  con- 
stitution ;  it  must  therefore  be  a  principle  that  they 
are  co-ordinate. 

A  constitution  which  so  divides  the  departments  of 
government  must  be  obeyed;  legislation  that  contra- 
venes such  a  constitution  must  be  held  void.  An  in- 
stance of  the  application  of  this  rule  is  seen  in  Auditor 
v.  Atchison,  etc.,  R.  E.,  6  Kan.  506  (1870)— an  im- 
(64) 


Ch.    3]  ITS  INDEPENDENCE.  SJ    18 

portant  problem  in  view  of  the  amount  of  legislation 
governing  the  administration  of  the  matter  of  taxation. 
In  this  commonwealth  a  Hoard  of  Appraisers  and  As- 
sessors was  established  by  law  to  assess  railroad  preperty. 
The  property  of  the  railroad  here  in  the  litigation  was  as- 
sessed and  the  assessment  was  deposited  with  the  Auditor 
of  the  State  together  with  the  full  record  of  the  proceed- 
ings. The  auditor  appealed  from  the  assessment  as  too 
low  to  the  Supreme  Court  of  Kansas  in  accordance 
with  the  clause  in  the  statutes  providing  such  appeal. 
The  appeal  being  filed,  the  railroad  moved  the  court  to 
dismiss  it  on  ground  of  want  of  jurisdiction  because  of 
the  unconstitutionality  of  the  statute. 

Kingman  would  not  entertain  the  appeal :  The  legis- 
lature is  restricted  to  the  grant  of  appeals  in  their  na- 
ture and  essence  judicial  in  their  character.  It  would 
be  absurd  to  claim  that  it  is  in  the  power  of  the  legis- 
lature to  clothe  this  court  with  authority  to  review  acts 
purely  executive  in  their  character,  by  giving  an  ap- 
peal to  this  court.  Many  of  the  duties  which  the  ex- 
ecutive is  called  upon  to  perform  require  great  care 
and  judgment  in  deciding  how  to  act.  Yet,  when  the 
decision  is  made  an  appeal  could  not  be  given  to  this 
court  for  that  would  give  to  the  court  executive  powers. 
as  well  as  judicial — a  power  as  dangerous  to  good  gov- 
ernment as  it  is  subversive  of  the  constitution  which 
has  carefully  kept  separate  the  executive,  legislative 
and  judicial  departments  of  the  government.  It  cer- 
tainly could  not  be  so,  or  it  would  of  necessity  obliterate 
the  lines  by  which  t he  framer's  of  that  instrument  sought 
to  keep  separate  and  distinct,  the  three  branches  of  our 

government. 

(65) 

Adm.  Law — 5. 


§   18  ADMINISTRATIVE  LAW.  [Ch.   3 

This  principle  of  the  independence  of  the  adminis- 
tration must  not  be  imposed  too  far,  however,  upon  the 
conditions  of  constitutional  government  in  the  United 
States.  It  may  he  well  to  cite  one  remarkable  claim  of 
this  sort,  that  made  by  the  Comptroller,  in  Re  Sugar 
Bounty,  2  Compt.  Dec  98  (1895).  This  was  a  claim 
of  the  Oxnard  Beet  Sugar  Company  for  $11,782.50,  boun- 
ty of  2  cents  per  pound  on  sugar  produced  within  the 
United  States,  according  to  the  provision  in  the  act  of 
July  31,  1894.  The  Auditor  certified  the  case  to  the 
Comptroller;  whereupon  the  Comptroller  called  upon 
the  claimant  to  show  why  the  Comptroller  should  not 
refuse  payment  of  these  bounties  on  the  ground  of  the 
unconstitutionality  of  the  appropriation. 

And  upon  that  basis  BOWLBK,  the  Comptroller,  refused 
payment:  The  conclusion  is  irresistible  that  it  is  the 
duty  of  the  executive  officer  to  obey  the  law;  that  the 
constitution  is  the  supreme  law,  and  so  are  statutes 
passed  in  pursuance  thereof;  that  statutes  which  do 
not  conform  to  the  constitution  are  not  law,  and  there- 
fore when  a  statute  is  in  apparent  conflict  it  becomes 
the  duty  of  the  executive  officer  to  determine  for  him- 
self as  between  the  statute  and  the  constitution  wheth- 
er the  statute  is  the  law.  It  is  true  that  the  statute 
is  to  be  considered  prima  facie  constitutional  and  that 
it  should  be  followed  unless  clearly  unconstitutional. 
It  is  true  also  that  the  officer  acts  at  his  peril  if  he 
does  not  execute  a  constitutional  statute,  but  it  is  none 
the  less  true  that  be  acts  at  his  peril  if  he  executes  an 
unconstitutional  statute.  The  comptroller  has  never 
claimed  to  be  invested  with  any  judicial  power  by  vir- 
tue of  which  he  is  authorized  to  hold  and  treat  an  act 
(66) 


Ch.    3]  ITS  INDEPENDENCE.  §    18 

as  unconstitutional  otherwise  than  is  any  superior  ex- 
ecutive officer  charged  with  the  responsibility  of  as- 
certaining" what  the  law  is  in  order  to  govern  his  ac- 
tions. 

As  an  abstraction  this  ruling  is  perfect  in  its  logic. 
If  you  have  three  departments  of  government,  each  ab- 
solute in  its  independence  granted,  the  next  step  is  to 
say  that  the  constitution  addresses  itself  to  each,  so 
that  each  must  decide  the  question  of  constitutionality 
of  the  acts  of  the  other,  and  of  its  own  acts  in  pursu- 
ance of  any  action  of  its  own,  since  in  that  view  it  is 
impossible  that  any  one  of  the  departments  should  as- 
sume preponderance  in  any  inquiry  over  the  action  of 
any  of  the  others.  All  that  is  the  logic  of  a  constitu- 
tion; so  in  France  with  a  constitution  which  establishes 
the  three  departments  of  the  government,  the  legislative, 
judicial,  and  the  executive,  the  conclusion  is  reached 
that  no  one  of  these  three  departments  can  do  wrong- 
in  the  eye  of  the  other.  Whatever  the  legislature  enacts 
must  be  regarded  as  constitutional,  whatever  the  judi- 
ciary decides  is  final,  whatever  the  executive  does  is 
well  done.  In  France,  therefore,  the  judiciary  cannot 
doubt  the  validity  of  any  statute  passed  by  the  legis- 
lature, nor  question  the  propriety  of  any  official  action 
of  the  executive. 

This  is  not  so  in  the  United  States;  we  have  another 
view  of  the  function  of  the  judiciary  founded  in  our 
history  and  continued  in  our  policy.  Under  our  sys- 
tem the  courts  in  last  resort  may  inquire  into  the  con- 
stitutionality of  legislation  and  the  validity  of  adminis- 
tration. Notwithstanding  this,  it  would  seem  that  the 
courts  should  give  a  certain   weight   to  the  separation 

(67) 


§   19  ADMINISTRATIVE  LAW.  [Ch.   3 

of  powers.  Perhaps  as  much  as  this :  the  courts  should 
recognize  that  the  legislature  is  by  the  course  of  things 
first  in  the  enactment  of  laws;  that  accordingly,  unless 
the  statute  is  unconstitutional  beyond  all  doubt,  it  should 
be  allowed.  The  same  attitude  should  be  taken  toward 
the  executive  department;  unless  official  action  is  square 
ly  in  conflict  with  law,  it  should  be  supported  also, 
since  that  is  the  office  of  administration.  It  should  only 
be  in  last  resort  that  the  judiciary  should  question  ex- 
ecutive action.  Whenever  there  is  doubt  the  adminis- 
tration, as  an  independent  department,  should  at  least 
be  given  the  doubt.13 

§  19.  Independence. 

The  proposition  that  each  of  the  three  departments 
of  the  government  is  co-ordinate  involves  the  conclusion 
that  no  one  of  the  departments  can  call  the  other  to  ac- 
count in  a  direct  proceeding  brought  against  it.  To  a 
certain  extent  this  is  the  fact;  that  neither  of  the  oth- 

13  Separation  of  the  Departments. — Worcester  v.  Georgia,  6  Pet. 
570;  Mississippi  v.  Johnson,  4  Wall.  475;  Fox  v.  McDonald,  101 
Ala.  51;  Ex  parte  Allen,  26  Ark.  9;  Ex  parte  Shrader,  33  Cal.  279; 
Land  Co.  v.  Routt,  17  Colo.  156;  State  v.  Staub,  61  Conn.  568; 
In  re  Miller,  5  Mackey,  507;  McWhorter  v.  Pensacola  R.  R.,  24 
Fla.  417:  Hilliard  v.  Connelly.  7  Ga.  179;  People  v.  Bissell,  19 
111.  229;  State  v.  Hyde,  121  Ind.  20;  Brown  v.  Duffus,  66  la.  193; 
Auditor  v.  Atchison,  etc.,  R.  R.,  6  Kan.  500;  State  v.  Shakespeare.  41 
La.  Ann.  156;  Dennett,  Petitioner,  32  Me.  508;  Baltimore  v.  State. 
15  Md.  457;  Supervisors  of  Election,  114  Mass.  247:  People  v.  Hurl- 
but,  24  Mich.  63;  State-  v.  Dike,  20  Minn.  363;  State  v.  Hathaway, 
115  Mo.  36;  Vicksburg  &  M.  R.  Co.  v.  Lowry,  61  Miss.  102;  Miller  v. 
Wheeler,  33  Neb.  .765;  Merrill  v.  Sherburne,  1  N.  H.  199;  In  re 
Cleveland,  51  N.  J.  L.  311;  In  re  New  York  Elevated  R.  Co.,  70  N. 
Y.  327:  State  v.  Chase,  5  Oh.  St.  528;  Gray  v.  Pentland.  2  S.  & 
R.  23;  Taylor  v.  Place,  4  R.  I.  338:  State  v.  McMillan.  52  S.  C.  69: 
Turnpike  Co.  v.  Brown,  8  Baxt.  490:  Houston,  etc..  R.  R.  v.  Randolph. 
24  Tex.  317. 

(68) 


Ch.    3]  ITS  INDEPENDENCE.  jj    1<) 

ers  can  have  any  position  to  command  the  other.  Our 
first  great  state  trial,  United  States  v.  Aaron  Burr,  Fed. 
('as.  X<>.  14,<;!>2  (1806),  should  have  made  this  inherent 
lack  of  power  in  such  an  attempt  plain  once  for  all. 
In  this  was  a  motion  for  a  subpoena  duces  tecum  di- 
rected to  the  President  of  the  United  States. 

Chief  Justice  Marshall  granted  the  motion:  The 
obligation  to  respond  to  process,  he  said,  is  a  general 
one.  The  King  in  England,  perhaps,  may  give  his  tes- 
timony. It  is  said  to  be  incompatible  with  his  dig- 
nity to  appear  under  process  of  the  court.  But  the 
President  is  altogether  different  from  the  King.  By 
the  constitution  of  Great  Britain  the  crown  is  heredi- 
tary, and  the  monarch  can  never  be  a  subject;  by  the 
constitution  of  the  United  States  the  President  is  elect- 
ed from  the  people  and  returns  to  the  mass  of  the  peo- 
ple again.  If  upon  any  principle  the  President  should 
be  made  an  exception,  it  would  be  upon  grounds  of  ex- 
pediency, his  office  requiring  his  time;  but  that  could 
be  arranged  for.  So  Marshall  issued  his  subpoena ;  but 
Jefferson  refused  to  obey  it;  and  Marshall  had  no  way 
to  enforce  it. 

Once  only  has  the  possibility  of  directing  the  Presi- 
dent been  suggested  in  the  Supreme  Court  of  the  Unit- 
ed States,  in  Mississippi  v.  Johnson,  4  Wall.  475  (1866). 
This  was  a  motion  made  on  behalf  of  the  state  of  Mis- 
sissippi for  leave  to  file  a  bill  in  the  name  of  the  state, 
praying  this  court  to  enjoin  and  restrain  Andrew  John- 
son, a  citizen  of  the  state  of  Tennessee  and  President 
of  the  United  Stales  and  his  officers  and  agents  for  that 
purpose,  and  especially  one  Ord,  military  commander, 
from  executing  or  in  any  manner  carrying  into  effect 

(69) 


£   19  ADMINISTRATIVE  LAW.  [Ch.   3 

two  acts  of  Congress  named  in  the  bills  commonly 
known  as  the  Reconstruction  Acts.  The  bill  complained 
that  scope  of  power  so  broad  was  never  before  vested 
in  a  military  commander  in  any  government,  since  it 
embraced  all  those  subjects  over  which  states  have  re- 
served the  power  of  legislation  for  themselves.  The 
bill  further  charged  that  iu  their  opinion  and  belief 
the  said  Andrew  Johnson,  President,  in  violation  of 
the  sacred  rights  of  the  states  and  in  violation  of  the 
constitution,  would  proceed,  notwithstanding  his  veto, 
and  as  a  mere  ministerial  duty,  to  the  execution  of  the 
said  acts  as  though  they  were  the  law  of  the  land,  which 
vetoes  prove  he  would  not  do  so  if  he  had  any  discre- 
tion. The  Attorney-General  objected  to  the  bill  in  limine 
as  containing  matter  not  fit  to  be  heard;  the  issue  there- 
fore was  upon  the  question  of  leave  to  file  the  bill. 

Chief  Justice  Chase  was  adequate  to  the  situation; 
his  opinion  leaves  nothing  to  be  doubted :  The  simple 
point  which  requires  consideration  is  this:  can  the  Pres- 
ident be  restrained  by  injunction  from  carrying  into 
effect  an  act  of  Congress  alleged  to  be  unconstitutional? 
It  is  assumed  by  the  counsel  for  the  state  of  Mississippi 
that  the  President  in  the  execution  of  the  Reconstruc- 
tion Acts  is  required  to  perform  a  mere  ministerial  duty. 
In  this  assumption  there  is,  we  think,  a  confounding  of 
the  terms  of  ministerial  and  executive,  which  are  by 
no  means  equivalent.  The  duty  imposed  upon  the  Pres- 
ident by  these  Acts  is  in  no  just  sense  ministerial.  It 
is  purely  executive  and  political.  An  attempt  on  tin- 
part  of  the  judicial  department  of  the  government  to 
enforce  such  duties  by  the  President  might  justly  be 
characterized  in  the  language  of  Chief  Justice  Marshall, 
(TO) 


Ch.    3]  ITS  INDEPENDENCE.  if    10 

as  absurd  and  excessive  extravagance.  It  is  true  that 
in  the  instance  before  us  the  interposition  of  the  courl 
is  not  sought  to  enforce  action  by  the  executive  under 
constitutional  legislation,  but  to  restrain  such  action 
under  legislation  alleged  to  be  unconstitutional.  But 
we  are  unable  to  perceive  that  this  circumstance  takes 
the  case  out  of  the  general  principles  which  forbid  judi- 
cial interference  in  the  exercise  of  executive  discretion. 
Congress  is  a  legislative  department  of  the  government; 
the  President  is  the  executive  department.  Neither  can 
be  restrained  in  its  action  by  the  judicial  department, 
though  the  acts  of  both  when  performed  are,  in  proper 
cases,  subject  to  his  cognizance.  We  are  fully  satisfied 
this  court  has  no  jurisdiction  of  a  bill  to  enjoin  the 
President  in  the  performance  of  his  official  duties;  and 
that  no  such  bill  ought  to  be  received  by  us. 

This  case  is  without  doubt  one  of  the  chief  decisions 
in  our  administrative  law,  for  it  settles  beyond  ques- 
tion one  of  the  fundamental  principles.  The  President 
cannot  be  commanded  by  the  courts,  since  the  Presi- 
dent himself  is  the  executive  department.  As  all  of 
the  departments  are  co-ordinate,  all  of  the  departments 
are  independent.  But  suppose  the  judiciary  should  re- 
nounce this  principle  and  should  direct  a  mandamus  for 
example  against  the  President;  who  would  enforce  that 
decree?  Not  the  United  States  Marshal,  for  he  is  an 
administrative  subordinate  of  the  President.  The  truth 
is  that  the  execution  of  such  an  order  is  impossible, 
since  all  the  powers  of  enforcement  of  law  are  in  the 
hands  of  a  President  should  lie  be  advised  to  hold  his 
ground.  Such  an  impossibility  makes  any  claim  for- 
ever idle,  it  would  seem. 

(71) 


ft    ]tj  ADMINISTRATIVE  LAW.  [Ch.    3 

These  statements  cannot  be  made  without  qualifica- 
tion, because  the  Governor  of  the  state  is  not  always 
Heated  like  the  President  of  the  United  States.  There 
is  a  square  conflict  in  the  authorities  upon  this  point; 
it  may  be  best  to  defer  discussion  upon  this  point  until 
a  case  upon  each  side  is  slated.  On  one  side  is  People 
v.  The  Governor,  20  Mich.  320  (1874).  This  was  an 
application  for  an  order  requiring  the  Governor  to  show 
cause  why  lie  had  not  issued  a  certificate  of  construc- 
tion. It  was  claimed  that  whether  he  should  issue  it 
or  not  was  a  question  for  the  judiciary  to  determine. 
The  court  upon  a  preliminary  consideration  of  the  pe- 
tition declined  to  entertain  the  suit  upon  the  ground 
of  lack  of  jurisdiction  in  the  judiciary  to  direct  a  man- 
damus to  the  Governor. 

The  whole  issue  was  discussed  by  Judge  Cooley  in 
one  of  the  ablest  of  his  constitutional  opinions.  His 
argument  in  substance  was  this:  Our  government  is 
one  whose  powers  have  been  carefully  apportioned  be- 
tween three  distinct  departments  which  emanate  alike 
from  the  people,  have  their  powers  alike  limited  and 
defined  by  the  constitution,  are  of  equal  dignity,  and 
within  their  respective  spheres  of  action  are  of  equal 
independence.  One  makes  the  laws,  another  applies  the 
law  in  contested  cases,  while  the  third  must  see  that 
the  laws  are  executed.  This  division  is  accepted  as 
a  necessity  in  all  free  governments,  and  the  very  ap- 
portionment of  power  to  one  department  is  understood 
to  be  a  prohibition  of  its  exercise  by  either  of  the  oth- 
ers. The  executive  is  forbidden  to  exercise  judicial 
power  by  the  same  implication  which  forbids  the  courts 
to  take  upon  themselves  his  duties.  As  regards  the 
(72) 


Ch.    3]  ITS  INDEPENDENCE.  g    19 

question  of  immunity  from  coercion  by  the  courts,  the 
Governor  of  a  state  occupies  a  position  analogous  rath- 
er to  the  President  of  the  United  States,  than  to  any 
inferior  officers  of  the  Executive  Department.  As  to 
all  authority  therefore  confided  to  the  Governor,  wheth- 
er by  the  constitution  or  by  statute,  it  will  be  presumed 
that  the  power  belongs  exclusively  to  the  Executive  De- 
partment and  therefore  it  cannot  be  subject  to  coercion 
by  judicial  process. 

The  leading  ease  on  the  other  side  of  the  controversy 
is  State  v!  Chase,  5  Oh.  St.  528  (1856).  This,  too, 
was  an  application  for  the  allowance  of  a  writ  of 
peremptory  mandamus.  It  was  provided  then  in  the 
law  governing  the  incorporation  of  banks  in  Ohio,  that 
the  organization  should  be  examined  and  certified  to  the 
Governor,  who,  should  he  be  satisfied  that  the  law  had 
been  in  all  respects  complied  with,  issue  his  proclama- 
tion that  the  company  was  authorized  to  begin  business. 
The  relators  alleged  that  in  fact  all  the  conditions  preced- 
ent to  incorporation  had  been  fulfilled  by  them,  not- 
withstanding which  the  Governor  as  yet  had  refused  to 
issue  the  proclamatiou.  The  court  would  not  listen  to 
a  plea  of  improper  jurisdiction,  but  went  into  the  merits 
of  the  matter. 

In  the  opinion  Baktlky,  the  Chief  Justice,  discussed 
first  this  cpiestion :  Whether  the  Governor  can  be  con- 
trolled in  his  official  action  by  the  authority  of  a  writ 
of  mandamus  from  the  Supreme  Court.  It  is  claimed 
on  the  part  of  the  defense,  he  said,  that  inasmuch  as  the 
government  by  the  constitution  is  divided  into  three 
separate  and  co-ordinate  departments,  the  legislative, 
the  executive  and  the  judicial,  it  necessarily  follows  that 

(73) 


£$   j9  ADMINISTRATIVE  LAW.  [Ch.   3 

each  department  must  be  supreme  within  the  scope  of 
the  powers,  and  neither  subject  to  the  control,  of  the 
others  for  the  manner  iu  which  it  performs  or  its  fail- 
ure to  perform  its  legal  or  constitutional  duties.  This 
argument  is  founded  on  theory,  rather  than  on  reality. 
Under  our  system  of  government,  no  officer  is  placed 
above  the  restraining  authority  of  the  law;  except  in 
the  exercise  of  a  discretion  vested  by  law  no  officer  can 
claim  exemption  from  judicial  inquiry.  It  is  not,  there- 
fore, by  the  person  to  whom  the  writ  is  directed,  but 
the  nature  of  the  thing  to  be  done  that  the  propriety  or 
impropriety  of  issuing  a  mandamus  is  to  be  determined. 
There  is  nothing  in  the  nature  of  the  chief  executive 
office  of  this  state  which  prevents  the  performance  of 
duties  merely  ministerial  being  enjoined  on  the  Gov- 
ernor. 

The  questions  which  arise  in  this  section  in  truth  test 
the  balance  of  powers  in  our  constitutional  form  of 
government.  It  involves  the  issue  whether  there  is 
a  true  co-ordination  of  the  departments  of  government. 
The  executive  himself  is  the  executive  department  as 
truly  as  the  judges  are  the  court  or  the  members  are 
the  legislative.  Each  in  its  sphere  is  supreme.  In  re- 
spect to  the  executive  himself  every  act  of  his  is  of 
the  same  quality;  the  action  of  a  governmental  depart- 
ment with  inherent  constitutional  powers.  The  chief 
executive  in  any  state  in  all  matters  confided  to  him 
must  be,  it  would  seem,  his  own  judge.  (Maims  upon 
him  for  performance  or  non-performance  should  be  re- 
mitted to  the  political  forum  for  settlement;  they  should 
not  be  litigated  in  the  courts.14 

14  Independence. — Mississippi  v.  Johnson,  4  Wall.  475;  Green  v. 
(74) 


Ch.    3]  ITS  INDEPENDENCE.  <    20 

§  20.     Co-ordination. 

The  rule  which  makes  the  department  of  the  govern- 
ment independent  limits  governmental  methods.  It  will 
be  possible  to  put  two  departments  at  the  same  work  if 
they  are  co-ordinated,  each  with  its  own  function  to 
perform;  but  it  will  not  be  possible  To  put  two  depart- 
ments at  the  same  businesses  if  one  is  subordinated  to 
the  other, — one  superior,  the  other  inferior.  It  is  sub- 
mitted that  these  must  be  the  consequences  of  the  rub1 
for  the  division  of  the  departments.  There  are  two 
decisions  in  the  Supreme  Court  of  the  United  States 
about  the  middle  of  the  century  that  test  these  proposi- 
tions so  thoroughly  that  it  would  seem  that  there  could 
be  no  more  to  say  upon  this  issue.  These  decisions  are 
worth  careful  consideration,  because  the  problem  is  a 
most  important  one  in  the  actual  conduct  of  the  business 
of  administration. 

United  States  v.  Ferreira,  13  How.  40  (1851),  is  the 
first  case.  This  case  arose  in  the  matter  of  the  Span- 
ish claims  in  the  IToridas.  The  determination  of  these 
claims  in  pursuance  of  the  treaty  of  cession  was  re- 
ferred to  the  jurisdiction  of  the  judge  of  the  terri- 
torial court  in  Florida.  After  the  adjudication  of  such 
claims  in  this  manner,  it  was  provided  that  they  should 

Mills,  25  U.  S.  App.  383;  Tennessee,  etc.,  R.  Co.  v.  Moore,  36  Ala.  371  : 
Hawkins  v.  Governor,  1  Ark.  570;  Middleton  v.  Low,  30  Cal.  596; 
Land  Co.  v.  Routt.  17  Colo.  156;  State  v.  Drew,  17  Fla.  67;  State  v. 
Towns,  8  Ga.  360;  People  v.  Bissell,  19  111.  229;  Gray  v.  State,  '<2 
Ind.  567;  State  v.  Warmoth,  22  La.  Ann.  1;  Magruder  v.  Swann.  25 
Md.  173;  Dennett,  Petitioner,  32  Me.  508;  People  v.  Governor.  29 
Mich.  320;  State  v.  Dike.  20  Minn.  363;  State  v.  Stone.  120  Mo.  428; 
State  v.  Governor.  25  X.  J.  L.  331;  Clark  v.  Miller,  54  N.  Y.  528; 
State  v.  Chase.  5  Oh.  St.  528;  Mauran  v.  Smith,  8  R.  I.  192:  State  v. 
Thorson,  9  S.  D.  149;   Houston,  etc.,  R.  Co.  v.  Randolph.  24  Tex.  317. 

(75) 


s   20  ADMINISTRATIVE    LAW.  [Ch.   3 

be  reported  to  the  Secretary  of  War  at  Washington, 
who.  on  being  satisfied  that  they  were  just  and  equitable, 
should  cause  theni  to  be  paid.  The  principal  case  was 
an  attempt  to  take  an  appeal  from  the  judge  to  the 
Supreme  Court  of  the  United  States.  The  only  ques- 
tion determined  in  that  court  was  whether  there  was  any 
jurisdiction  to  determine  the  appeal;  and,  in  order  to 
decide  that  question,  whether  the  nature  of  the  pro- 
ceedings before  the  district  judge  was  judicial  or  ad- 
ministrative; since  though  a  territorial  judge  might  act 
as  a  commissioner,  the  Supreme  Court  could  only  act  as 
a  court, 

Mr.  Justice  Wayne  examined  the  case  with  care,  with 
the  result  that  he  found  no  jurisdiction  to  hear  an  ap- 
peal in  the  court:  Congress  has  provided  a  special 
method  of  adjudication  of  these  questions.  When  that 
tribunal  was  appointed  it  derived  its  whole  authority 
from  the  law  creating  it,  and  not  from  the  Treaty,  and 
Congress  had  the  right  to  regulate  its  proceedings,  and 
limit  its  powers,  and  to  subject  its  decisions  to  the  con- 
trol of  an  appellate  tribunal  if  it  appeared  advisable  to 
do  so.  If  the  tribunal  acts  at  all,  it  acts  under  the 
authority  of  law  and  must  obey  the  law.  It  is  man- 
ifest that  this  power  to  decide  upon  the  validity  of  these 
claims  is  not  conferred  on  them  as  a  judicial  function 
to  be  exercised  in  the  ordinary  limits  of  a  court  of  jus- 
tice. There  is  to  be  no  suit,  no  parties  in  the  legal 
sense,  no  process,  no  appearance  for  the  United  States, 
no  obligatory  summoning  of  witnesses.  The  proceed- 
ing is  altogether  ex  parte.  Again,  the  award  is  to  be 
transmitted  with  the  evidence  to  the  Secretary  of  the 
Treasury,  and  the  Secretary  is  to  pay  the  claim  if  he 
(76) 


Ch.   3]  ITS  INDEPENDENCE.  :<    20 

judge  it  just  and  equitable.  Such  a  tribunal  is  uot 
a  judicial  one;  the  decision  is  not  the  judgment  of  a 
court  of  justice;  it  is  the  award  of  a  commissioner.  An 
appeal  to  this  court  from  such  a  decision  would  be  an 
anomaly  in  the  history  of  jurisprudence.  An  appeal 
might  as  well  have  been  taken  from  the  awards  of  the 
board  of  commissioners  under  the  Mexican  treaty.  We 
cannot  see  any  ground  for  objection  to  the  power  of 
revision  given  to  the  Secretary.  When  the  United 
States  consent  to  submit  the  adjustment  of  claims  to 
any  tribunal,  they  have  the  right  to  make  the  approval 
of  the  award  by  the  Secretary  of  the  Treasury  as  one 
of  the  conditions  upon  which  they  will  be  liable.  It 
is  true  that  the  powers  conferred  by  these  acts  of  Con- 
gress upon  the  judge  as  well  as  the  Secretary  are  judi- 
cial in  their  nature  when  judgment  and  discretion  must 
be  exercised  by  both  of  them;  but  it  is  nothing  more 
than  the  power  ordinarily  given  by  law  to  a  commis- 
sioner appointed  to  adjust  claims  to  lands  or  money 
under  treaty,  or  special  powers  to  inquire  into  or  de- 
cide any  other  particular  classes  of  controversies  in 
which  the  public  or  individuals  may  be  concerned.  A 
power  of  this  description  may  constitutionally  be  con- 
ferred on  a  secretary  as  well  as  on  a  commissioner,  but 
it  is  not  judicial  in  either  case  in  the  sense  in  which 
judicial  power  is  granted  by  the  constitution  of  the 
United  States. 

United  States  v.  Ritchie,  IT  How.  525  (LS">4),  is  an 
excellent  second  case  for  comparison  with  the  case  thai 
has  just  been  recited.  These  proceedings  were  orig- 
inally commenced  before  the  board  of  commissioners 
to  settle   private    land    claims    in    California    under   the 

(77) 


§  20  ADMINISTRATIVE    LAW.  [Ch.   3 

act  of  March  3,  1851.  The  commission,  after  hearing 
the  proofs  filed  by  the  claimant,  ordered  that  the  title 
be  continued  to  Ritchie.  The  United  States,  in  accord- 
ance with  the  process  provided,  filed  a  transcript  of  the 
proceedings  in  the  district  court  of  the  United  States, 
praying  for  a  readjudication.  Ritchie  by  his  counsel 
raised  the  point  of  want  of  jurisdiction  upon  the  ground 
that  the  procedure  provided  by  the  statute  was  against 
the  constitution.  If  the  case  last  recited  represents  a 
true  rule,  this  present  case  cannot  be  within  the  juris- 
diction of  the  Supreme  Court;  unless  The  process  in  the 
present  case  is  upon  a  different  foundation  altogether. 
Mr.  Justice  Nelson  goes  to  that  extent;  he  establishes 
the  distinction:  It  is  objected  that  the  law  prescrib- 
ing an  appeal  To  the  district  court  from  the  decision  of 
the  board  of  commissioners  is  unconstitutional;  as  this 
board  as  organized  is  not  a  court  under  the  constitution 
and  cannot,  therefore,  be  invested  with  any  of  the  judi- 
cial powers  conferred  upon  the  general  government. 
But  the  answer  to  the  objection  is  that  the  suit  in  the 
district  court  is  to  be  regarded  as  an  original  proceed- 
ing, the  removal  of  the  transcript,  evidence,  and  papers 
into  it  from  the  board  of  commissioners,  being  but  a 
mode  of  providing  for  the  institution  of  the  suit  in  That 
court.  The  transfer  it  is  true  is  called  an  appeal ;  we 
must  not,  however,  be  misled  by  a  name,  but  look  to 
the  substance  and  intent  of  the  proceeding.  The  dis- 
trict court  is  not  confined  to  a  mere  examination  of  the 
case  as  heard  and  decided  by  the  board  of  commis- 
sioners, but  hears  the  case  de  novo,  upon  the  papers  and 
testimony  which  have  been  used  before  the  board,  they 
being  made  evidence  in  the  district  court ;  and  also  upon 
(78) 


Ch.    3]  ITS  INDEPENDENCE.  §    20 

such  further  evidence  as  either  party  may  see  fit  to 
produce. 

The  general  situation  discussed  in  these  cases  involves 
the  whole  of  the  doctrine  of  the  separation  of  powers. 
This  must  be  premised:  If  there  is  some  issue  to  be 
determined  in  the  course  of  the  business  of  administra- 
tion the  legislature  may  assign  the  adjudication  upon 
that  issue  either  to  the  executive  department  or  to  the 
judicial  department.  In  some  of  the  administration  of 
law,  indeed,  it  is  almost  impossible  to  distinguish  be- 
tween administration  by  adjudication  and  adjudication 
for  administration.  So  indistinguishable  in  truth  are 
these  functions  that  if  the  legislature  chose  it  may  for 
example  give  over  to  the  executive  the  determination  of 
land  grants  or  it  may  give  over  that  inquiry  to  the  ju- 
diciary; and  in  either  case  it  cannot  be  said  that  the 
legislative  has  acted  in  an  outrageous  way  in  appor- 
tioning the  power  to  either,  so  that  their  action  can- 
not be  attacked  as  against  the  constitutional  rule  re- 
quiring some  degree  of  propriety  in  the  distribution  of 
the  functions. 

That  first  obstacle  may  therefore  be  circumvented; 
but  there  remains  another  bar,  the  rule  requiring 
substantial  independence  for  each  of  the  departments 
in  the  exercise  of  any  functions  whatever  that  may  be 
assigned  to  it.  The  two  cases  which  have  just  been  un- 
der consideration  require  that  a  distinction  shall  be 
taken  in  order  that  the  truth  may  be  told.  One  posi- 
tion of  things  is  not  possible  in  accordance  with  the 
rule  forbidding  subordination  of  one  department  to  an- 
other. A  matter  cannot  in  the  first  place  be  given  to 
the  judiciary  with  in  the  second  place  an  appeal  to  the 

(79) 


;<    21  ADMINISTRATIVE    LAW.  [Cft.    3. 

executive;  that  would  be  an  overt  situation  of  superior 
and  inferior  which  could  not  he  borne.  On  the  other 
hand  another  position  is  quite  possible  in  accordance 
with  the  rule  requiring  co-ordination  of  the  departments 
with  each  other.  A  matter  may  in  the  first  place  be 
given  to  the  executive  for  decision,  with  a  possibility  for 
an  adjudication  by  the  judiciary  in  the  second  place, 
provided  that  the  contest  begins  anew  in  the  judicial 
department.  Such  a  course  as  that  in  no  way  vio- 
lates the  rule  against  the  independence  of  the  depart- 
ments; it  is  indeed  founded  upon  that  rule.13 

§  21.     Subordination. 

In  the  last  paragraph  a  most  satisfactory  solution 
of  this  most  difficult  problem  was  found.  If  the  two 
departments,  the  executive  and  the  judiciary,  were  put 
in  co-ordination,  that  was  possible;  but  if  the  two  de- 
partments were  put  in  subordination,  that  was  impos- 
sible. That  is,  the  scheme  of  first  one  and  second  the 
other  is  well  enough  if  the  second  takes  up  the  matter 
as  an  original  issue;  but  if  the  second  takes  up  the 
matter  as  an  appellate  issue,  that  will  not  go.  This, 
it  would  seem,  is  more  than  a  formal  requirement,  it 
is  substantial  as  well.  The  only  difficulty  is  that  two 
recent  decisions  in  the  Supreme  Court  of  the  United 

is  Co-ordination. — United  States  v.  Ferreira,  13  How.  40;  United 
States  v.  Ritchie,  17  How.  525;  Fremont  v.  United  States,  17  How. 
542;  Avery  v.  Fox,  1  Abb.  C.  C.  246;  Fox  v.  McDonald,  101  Ala.  51; 
Staude  v.  Election  Com'rs,  61  Cal.  313;  People  v.  Scott,  9  Colo.  422; 
Owners  of  Lands  v.  People,  113  111.  296;  Flournoy  v.  Jeffersonville, 
17  Ind.  169;  Smith  v.  Gove,  70  Me.  551;  Crane  v.  Meginnis,  1  Gill  & 
J.  476;  Turner  v.  Althaus,  6  Neb.  54;  Thompson  v.  German  Valley  R. 
R.,  22  N.  J.  Eq.  Ill;  People  v.  Ulster,  etc..  R.  R..  128  N.  Y.  240; 
Brown  v.  Turner,  70  N.  C.  102. 

(80) 


Ch.    31  ITS  INDEPENDENCE.  |    21 

States  do  not  observe  this  distinction   which   was  laid 
down  in  those  two  earlier  cases. 

The  first  of  these  is  United  States  v.  Lies,  170  U.  S. 
628  (18981.  This  case  came  to  the  Supreme  Court  of 
the  United  States  by  virtue  of  a  writ  of  certiorari  is- 
sued to  the  Circuit  Court  of  Appeals  to  determine  why 
the  government  was  not  allowed  to  be  heard  in  full  in 
a  customs  proceeding  there.  The  litigation  arose  out  of 
a  conflict  of  views  between  the  Collector  and  the  import- 
ers as  to  the  manner  of  classification  and  the  rate  of 
duty  to  be  imposed  upon  an  importation  of  tobacco.  The 
importers,  dissatisfied,  brought  the  case  before  the  Board 
of  General  Appraisers;  again  dissatisfied,  they  broughi 
the  case  into  the  Circuit  Court — all  in  accordance  with 
the  Customs  Administration  Act  of  1890.  The  gov- 
ernment took  no  action  to  remove  the  case  to  judicial 
courts,  so  that  the  only  protectants  there  were  the  im- 
porters ;  and  subsequently  the  importers  themselves  with- 
drew their  appeal. 

At  that  stage  the  government  itself  claimed  to  be 
heard  to  contest  that  part  of  the  decision  of  the  Gen- 
eral Appraisers  brought  up  by  the  appeal  that  was 
unfavorable  to  it.  Mr.  Justice  Peckham  was  of  the 
opinion  that  the  government  had  no  standing  left.  lie 
treated  the  whole  transfer  upon  the  basis  of  a  formal 
appeal.  The  fact  that  one  party  appeals,  he  said,  fur- 
nishes no  reason  for  holding  that  the  other  can  obtain 
all  the  benefits  of  an  appeal  himself  without  complying 
in  any  particular  with  the  statute  giving  an  appeal. 
There  would  be  no  reason  or  fairness  in  so  providing, 
and  we  are  of  opinion  the  statute  properly  construed 
does  not  so  provide.     Although  the  Circuil   Court  has, 

(83  | 

A  dm.   Law — 6. 


^    21  ADMINISTRATIVE    LAW.  [Qh.    3 

upon  application  of  the  parties,  power  to  take  further 
testimony  after  the  ease  is  brought  before  it,  and  to 
that  extent  it  may  be  regarded  as  something  in  the 
nature  of  a  new  proceeding,  yet  the  proper  procedure 
in  deciding  the  appeal  is  in  no  way  altered  thereby. 
As  the  government  in  this  case  took  no  proceedings  to 
review  the  decision  of  the  Board  of  General  Appraisers, 
it  cannot  be  heard  to  object  to  an  affirmance  of  such 
decision. 

This  judgment  is  proper  enough.  Clearly  the  gov- 
ernment has  no  standing  in  the  Circuit  Court;  if  the 
proceedings  are  regarded  as  begun  anew  there,  that 
seems  the  more  conclusive;  it  is  only  the  language  that 
is  objectionable,  stating  that  to  be  a  possible  condition 
of  affairs  that  the  judiciary  department  is  made  appel- 
late over  a  proceeding  initiated  in  the  executive  de- 
partment. In  a  decision  in  the  next  term  that  point 
came  up  squarely  fur  decision.  It  became  a  direct  issue 
in  this  next  case  whether  an  appeal  could  be  taken  from 
an  executive  office  to  an  appellate  court.  Some  expe- 
dition there  may  be  in  such  a  combined  action  of  first 
executive  as  an  inferior  tribunal,  and  then  the  judiciary 
as  a  superior  tribunal;  but  under  our  differentiation 
of  public  powers  it  seems  hardly  possible. 

The  second  case  is  United  States  v.  Duell,  Commission- 
er of  Patents,  172  U.  S.  576  (1899).  In  an  interference 
proceeding  in  the  Patent  Office  between  Bernadin  and 
Northall,  the  Commissioner  of  Patents  decided  in  favor 
of  Bernadin;  whereupon,  Northall  prosecuted  an  appeal 
to  the  Court  of  Appeals  of  the  District  of  Columbia  ac- 
cording  to  the  provisions  of  the  statutes.  That  court 
awarded  Northall  priority,  reversing  the  decision  of  the 
(82) 


Ch     3]  ITS  INDEPENDENCE.  §   21 

Commissioner;  notwithstanding  which  Bernadin  applied 
to  the  Commissioner  to  issue  the  patent  to  him;  but  the 
Commissioner  refused  to  do  this  in  view  of  the  decision 
of  the  Court  of  Appeals,  which  had  been  certified  to  him. 
Bernadin  then  applied  to  the  Supreme  Court  of  the 
District  of  Columbia  for  a  mandamus  to  compel  the 
Commissioner  to  issue  the  patent  in  accordance  with 
his  prior  decision  on  the  ground  that  the  statute  pro- 
viding for  an  appeal  was  unconstitutional. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the 
court:  The  contention  is  that  Congress  had  no  power 
to  authorize  the  Court  of  Appeals  to  review  the  action 
of  the  Commissioner  in  an  interference  case  on  the  theory 
that  the  Commissioner  is  an  executive  officer;  that  his 
action  in  determining  which  of  two  claimants  is  entitled 
to  a  patent  is  purely  executive ;  and  that,  therefore,  such 
action  cannot  be  subjected  to  the  revision  of  a  judi- 
cial tribunal.  However,  the  investigation  of  every 
claim  presented  involves  the  adjudication  of  disputed 
questions  of  fact  upon  scientific  and  legal  principles,  and 
is  therefore  essentially  judicial  in  its  character,  and 
requires  the  intelligent  judgment  of  a  trained  body  of 
skilled  officials,  expert  in  the  various  branches  of  sci- 
ence and  art,  learned  in  the  history  of  invention,  and 
proceeding  by  fixed  rules  to  systematic  conclusions.  We 
agree  that  it  is  of  vital  importance  that  the  line  of 
demarcation  between  the  three  great  departments  of 
government  should  be  observed;  and  thai  each  should  be 
limited  to  the  exercise  of  iis  appropriate  powers;  but  in 
the  matter  of  this  appeal  we  find  no  such  encroachment 
of  one  department  upon  the  domain  of  another  as  to 
justify  us  in  holding  the  net  in  question  unconstitu- 
tional. 

(83) 


§    21  ADMINISTRATIVE    LAW.  [Ch.    3 

This  case  is  a  surprise — an  unsatisfactory  denouement. 
Every  general  principle  stated  in  the  case  is  sound. 
Xo  better  statement  of  the  nature  of  the  various  rules 
requiring  a  separation  of  the  departments  and  necessi- 
tating a  proper  distribution  of  functions  can  be  found 
in  so  brief  compass  as  in  the  last  paragraph  of  this 
opinion.  And  yet  it  is  submitted  that  the  conclusion 
reached  in  this  case  is  the  direct  opposite  of  its  prin- 
ciples. It  may  well  be  asked  with  respect :  How  can 
there  be  a  more  flagrant  example  of  the  subordination  of 
one  of  the  great  departments  to  another  than  is  seen 
in  this  case,  where  a  judicial  court  is  put  over  an  ad- 
ministrative office,  where  the  action  of  an  executive  body 
is  subjected  to  the  revision  of  a  judicial  body;  for  what 
else  can  this  process  of  appeal  amount  to?  If  this  be 
allowed  in  this  case  it  is  difficult  to  see  why  it  must  not 
be  permitted  in  every  case.  And  the  end  of  a  series 
of  statutes  might  be  to  make  the  Chief  Justices  and  the 
Associate  Justices  of  the  United  States  pass  upon  the 
propriety  of  every  action  of  the  President  and  Cabinet 
of  the  United  States — a  reductio  ad  absurdum. 

This  is  not  an  insistence  upon  an  immaterial  thing; 
it  is  a  holding  to  the  life  principle  in  the  rule  of  the 
separation  of  powers.  If  it  be  required  that  the  judi- 
ciary shall  never  have  more  than  external  relations  with 
the  executive,  that  they  may  duly  act  in  co-ordination 
so  that  each  performs  its  own  part  and  each  judges 
for  itself,  well  and  good.  But  if  it  be  permitted  that 
the  judiciary  may  interfere  in  the  internal  operations  of 
the  administration,  that  makes  the  executive  act  in  suit- 
ordination  to  the  judiciary,  which  cannot  be  allowed. 
The  importance  of  this  distinction  for  the  administra- 
(84) 


Ch.   3]  ITS  INDEPENDENCE.  £   22 

tion  is  this:  Under  the  first  supposition,  the  judiciary 
can  only  hold  the  administration  in  the  wrong  if  there 
has  been  an  excess  of  powers,  if  the  administration  has 
exceeded  its  jurisdiction,  for  example.  But  under  the 
second  supposition,  the  judiciary  can  revise  action  of 
the  administration  done  in  pursuance  of  its  discretion, 
if  there  has  been  exercise  of  powers.  In  short,  the 
administration  may  judge  in  one  way  in  its  discretion 
and  the  judiciary  might  now  determine  the  matter  in 
another  way.  This  is  contrary  to  the  principle  that  the 
judiciary  should  have  no  business  in  the  action  of  the 
administration;  this  is  contrary  to  the  balance  of  pow- 
ers that  the  administration  should  be  left  without  its 
own  discretion  in  its  own  sphere.  Although  the  judi- 
ciary may  well  entertain  issues  involving  external  ad- 
ministrative law,  all  questions  involving  internal  ad- 
ministrative law  should  be  decided  upon  by  the  admin- 
istration itself,  free  from  the  review  of  any  other  de- 
partment.16 

§  22.     Division  of  functions. 

In  every  government  of  the  United  States,  then,  we 
find  these  three  departments,  the  legislative,  the  execu- 
tive, and  the  judicial.  Our  concern  is  to  separate  the 
executive  department  from  the  others,  to  disentangle  the 
functions  of  the  administration  from  the  others.  In  a 
general  way  the  one  follows  upon  the  other:  For  the 
legislative  department  in  a  general  way,  all  legislation 

io  Subordination. — Ex  parte  Vallandigham,  1  Wall.  243;  Gordon 
v.  U.  S.,  7  Wall.  188;  United  States  v.  Lies,  170  U.  S.  628;  United 
States  v.  Duell,  172  U.  S.  576;  Langenberg  v.  Decker,  131  Ind.  471; 
People  v.  Auditor  General,  38  Mich.  746;  In  re  R.  R.  Commissioners, 
15  Neb.  679. 

(85) 


<   22  ADMINISTRATIVE    LAW.  fCh.   3 

— that  is  what  it  is  most  lit  for,  deliberation;  for  the 
judicial  department  in  a  general  way,  all  adjudication 
— that,  too,  is  what  it  is  best  formed  for,  judgment;  and 
for  the  executive  department  in  the  same  way,  admin- 
istration— that  also  is  what  it  is  adapted  for,  enforce- 
ment. Then  does  the  legislative  department  alone  lay 
down  all  rules;  does  the  judiciary  decide  all  issues; 
docs  the  executive  confine  itself  altogether  to  action? 

That  is  the  normal  state  of  things  at  all  events.  An 
excellent  statement  of  the  scope  of  this  rule  of  separa- 
tion of  powers  is  found  in  Ex  parte  All  is,  12  Ark.  101 
( 1870) .  One  Allis  presented  a  petition  to  this  court  rep- 
resenting that  under  and  by  virtue  of  an  act  for  rebuild- 
ing the  penitentiary  the  Board  of  Inspectors  had  en- 
tered into  a  contract  with  him  for  the  construction.  Pe- 
titioner then  represented  what  progress  he  had  made 
in  the  work  he  had  undertaken.  He  then  stated  that 
he  had  called  upon  the  Board  of  Inspectors  to  certify 
what  work  had  been  done  to  the  Auditor  of  the  State. 
but  that  the  Inspectors  refused  to  do  so  upon  the  ground 
that  he  had  not  complied  with  his  contract  :  which  the 
petitioner  undertook  to  show  was  unjust  to  him  by  a 
detailed  representation  of  what  materials  he  had  pro- 
vided, money  expended,  and  work  performed  by  him  dur- 
ing the  quarter;  and  thereupon  asked  mandamus  to  the 
Inspectors  to  compel  them  to  certify  his  first  quarterly 
instalment. 

Mr.  Justice  Strong  refused  the  mandamus;  in  his 
preliminary  dicta  he  said:  If  this  court  has  rightful 
jurisdiction  in  cases  like  this  it  must  be  found  expressed 
in  the  Constitution  or  derived  by  a  just  and  necessary 
implication  from  the  expressions  used  in  that  instru- 
(86) 


Ch.   3]  ITS  INDEPENDENCE.  §   22 

merit.  Because  it  was  by  that  instrument  that  the  state 
government  was  instituted,  the  departments  created,  and 
the  powers  to  be  exercised  by  each  defined  aud  distrib- 
uted. It  is  established  by  that  instrument  that  the 
powers  of  government  should  be  divided  into  the  distinct 
departments.  This  is  to  be  considered  in  connection 
with  the  known  political  truth  that  this  is  necessary  no 
less  for  the  security  of  public  liberty  than  private  rights 
— a  truth  that  has  been  so  proclaimed  and  enforced  by 
some  of  the  most  wise  and  eminent  men  of  this  and 
other  countries,  and  is  besides  in  the  full  tide  of  suc- 
cessful experiment  in  all  the  sister  states  as  well  as 
the  federal  government. 

A  careful  examination  shows  sonic  exceptions  to  these 
usual  conditions.  It  is  hardly  too  much  to  say  that  in 
every  American  government  the  legislature  by  the  forms 
of  the  constitution  does  something  in  an  administrative 
way  by  its  officials,  at  times  may  hold  a  trial  in  a  ju- 
dicial way.  The  judiciary  also  in  accordance  with  per- 
mission of  the  constitution  may  in  a  few  cases  make 
rules  for  the  conduct  of  its  proceedings,  and  maintain 
direction  over  the  execution  of  its  decrees.  The  execu- 
tive itself  often  has  a  part  in  the  enactment  of  legisla- 
tion, and  certain  questions  are  left  to  the  adjudication 
of  the  administration.  These  exceptions  are  all  of  them 
unimportant.  Nothing  can  be  argued  from  the  power  of 
impeachment  of  the  legislature,  from  the  advisory  opin- 
ions of  the  judges,  from  the  veto  of  the  executive.  These 
are  all  avowed  exceptions  in  the  constitutional  structure 
placed  there  in  pursuance  of  a  certain  political  doctrine 
— the  theory  of  checks  and  balances.  Whatever  the 
positive  provisions  of  a  constitution  may  provide  can- 

(87) 


R   22  ADMINISTRATIVE    LAW.  [Ch.   3 

not  be  questioned;  but  neither  can  any  qualification  of 
the  general  theory  of  the  division  of  functions  be  admit- 
ted that  is  not  based  so  upon  explicit  constitutional  pro- 
vision. The  truth  of  the  matter  is  that  the  doctrine  of 
the  constitutional  necessity  of  the  distribution  of  the 
powers  of  government  to  the  corresponding  departments 
of  the  government  is  more  than  a  principle  of  policy. 
It  is  a  rule  of  law. 

The  most  extreme  instance  of  this  rule  against  the 
confusion  of  powers  may  be  imagined  where  an  admin- 
istrative body  is  given  both  legislative  and  judicial 
functions.  An  administrative  body,  then,  will  have  leg- 
islative, judicial,  and  executive  powers;  that  will  be  as 
contrary  to  the  rule  requiring  separation  of  powers  as 
can  lie.  Tins  is  not  a  supposititious  case;  it  is  Western 
Union  Tel.  Company  v.  Myatt,  98  Fed.  335  (1899).  By 
Chapter  28  of  the  Special  Sessions  Law  of  1898,  a 
special  tribunal  was  established  to  pass  upon  all  ques- 
tions of  rates  of  public  service  companies,  to  be  denom- 
inated the  Court  of  Visitation.  One  Maxwell  tendered 
to  the  Western  Union  Company  certain  messages 
and  a  certain  sum  fixed  by  the  Court  at  a  previous 
sitting.  Upon  refusal  of  the  complainant  to  perform 
the  service  at  such  rates,  Maxwell  filed  a  complaint  with 
the  state  solicitor;  and  the  latter  filed  an  information 
thereon  against  the  complainant  in  the  Court  of  Visita- 
tion, caused  citation  to  be  issued  upon  it.  and  was  pro- 
ceeding to  enforce  the  performance  of  the  telegraphic 
service  at  the  maximum  rates  prescribed.  The  com- 
plainant attacked  the  validity  of  said  enactments  of  the 
legislature,  and  claimed  that  the  enforcement  thereof 
would  operate  to  deprive  it  of  its  propertv  without  due 
(88) 


Ch.    3]  1TS  INDEPENDENCE.  ^  22 

process  of  law,  and  as  a  denial  of  the  equal  protection 
of  the  laws;  and  this  suit  was  brought  to  enjoin  further 
proceedings  for  the  enforcement  of  the  maximum  rates 
complained  of.  The  cause  now  arose  on  an  application 
of  complainant  for  a  temporary  injunction.  The  proofs 
on  such  application  clearly  showed  that  the  rates  pre- 
scribed by  the  law  were  not  only  not  compensatory,  but 
were  materially  less  than  the  actual  cost  of  the  service 
It  was  not  denied  by  defendants  that  sufficient  proof  had 
been  made  by  complainant  in  this  respect. 

The  opinion  in  this  case  was  an  elaborate  one,  citing 
many  cases  deciding  upon  the  separation  of  powers. 
Hook,  District  Judge,  concluded :  In  the  enactment  of 
the  law  creating  the  Court  of  Visitation  and  defining  its 
powers  and  jurisdiction,  and  of  the  subsequent  law  ex- 
tending such  powers  and  jurisdiction  to  telegraph  com- 
panies, the  legislature  attempted  to  confer  upon  a  single 
board  or  body  important  and  substantial  legislative, 
administrative,  and  judicial  powers,  to  be  exercised  in 
the  same  proceeding,  and  as  to  the  same  subject-matter. 
It  attempted  to  confer  full  power  to  regulate  the  opera- 
tion of  railroad  and  telegraph  companies,  and  to  pre 
scribe  schedules  of  rates  and  charges,  which  power  is 
legislative  or  administrative  in  its  character.  It  also 
attempted  to  confer  upon  the  Court  of  Visitation  the 
1  tower  to  pass  judicially  upon  its  regulations,  and  the 
reasonableness  of  the  rates  fixed  by  it,  to  embody  its 
determinations  in  decrees,  which  it  was  authorized  to 
enforce  by  the  apjDointment  of  receivers  and  the  seques- 
tration of  the  property  of  the  companies.  The  distinc- 
tion between  legislative  and  judicial  functions  is  a  vital 
one,  and  it  is  not  subject  to  change  or  impairment  either 

(89) 


«  23  ADMINISTRATIVE    LAW.  [Ch.   3- 

by  legislative  act  or  by  judicial  decree,  for  such  distinc- 
tion inheres  in  the  constitution  itself,  and  is  as  much  a 
part  of  it  as  though  it  were  definitely  defined  therein. 
When  the  legislature  has  once  acted,  either  by  itself  or 
through  some  subordinate  board  or  agency,  and  has  pre- 
scribed a  tariff  of  rates  and  charges,  then  whether  its 
action  is  violative  of  some  constitutional  safeguard  or 
limitation  is  a  judicial  question,  the  determination  of 
which  involves  the  exorcise  of  judicial  functions.  The 
question  is  then  beyond  the  province  of  legislative  juris- 
diction.17 

§  23.     Distribution. 

How  far  these  principles  against  confusion  of  powers 
would  go  came  at  once  to  the  tesi  when  the  earliesl  Con- 
gress began  upon  their  work  for  the  elaboration  of  the 
framework  of  the  governmental  system.  ( >ne  of  the  firsl 
missteps  was  in  the  enactmenl  of  the  method  of  the 
grant  of  pensions.     The  Act   of  the  5th  of  April,   L791, 

i"  Division  of  Functions. — .Murray's  Lessee  v.  Hobcken  Land  Co.. 
18  How.  272;  Stone  v.  Farmers'  Trust  Co..  lit',  IT.  S.  307;  Andrews  v. 
Hovey,  124  U.  S.  717;  Shoemaker  v.  U.  S.,  147  U.  S.  282;  Ex  Parte 
Riebeling,  70  Fed.  310;  Western  Union  Tel.  Co.  v.  Myatt.  98  Fed.  335; 
Fox  v.  McDonald,  101  Ala.  51;  Ex  Parte  Allis.  12  Ark.  101;  Ex  Parte 
Shrader.  33  Cal.  279;  People  v.  Scott.  9  Colo.  422;  State  V.  Staub. 
61  Conn.  568;  In  Re  Miller,  5  Mackey  507;  McWhorter  v.  Pensa- 
cola  R.  R.,  24  Fla.  417;  People  v.  Harper.  91  111.  357;  Langenberg  v. 
Decker,  131  Ind.  471;  Brown  v.  Duffus.  66  la.  193:  Martin  v.  Ing- 
ham. 38  Kan.  654;  State  v.  Shakespeare.  41  La.  Ann.  156;  Portland. 
etc.,  R.  R.  v.  Grand  Trunk  R.  R.,  46  Me.  69;  Baltimore  v.  State,  15 
Md.  457;  Supervisors  of  Election.  114  Mass.  247:  People  v.  Hurl- 
but,  24  Mich.  63:  State  v.  Hathaway.  115  Mo.  36:  Thorp  v.  Wool- 
man,  1  Mont.  168;  Miller  v.  Wheeler,  33  Neb.  7~65;  Sawyer  v. 
Dooley,  21  Nev.  390;  In  Re  Cleveland.  51  N.  J.  L.  311:  Brown  v. 
Turner,  70  N.  C.  102;  Taylor  v.  Place,  4  R.  I.  338;  Hoke  v.  Hender- 
son,   4    Dev.    1. 

(90) 


Ch.   3]  ITS  INDEPENDENCE.  £   23 

provided  that  the  petitions  should  he  submitted  to  the 
judges  of  the  United  States  who  should  certify  their  find- 
ings  to  the  Secretary  of  War,  who  should  then  upon  con- 
sideration of  the  whole  matter  grant  or  refuse  the  pen- 
sion, as  to  him  should  seem  fit.  It  is  fortunate  that  we 
have  some  account  of  the  rather  obscure  proceedings  in 
the  courts  upon  this  statute  in  the  report  of  Hayburn's 
Case,  2  Dallas,  409  (1792). 

In  the  Circuit  Court  of  the  district  of  New  York  Jay 
proceeded,  on  the  5th  of  April,  1791,  to  take  into  con- 
sideration the  Act  of  Congress  entitled,  "An  Act  to 
provide  for  the  settlement  of  claims  for  petitions  to  be 
granted  by  the  Secretary  of  War."  And  he  was  there- 
upon of  opinion  that  by  the  constitution  of  the  United 
States  the  government  thereof  is  divided  into  three  dis- 
tinct and  independent  branches;  that  neither  the  legis- 
lative nor  executive  branch  can  constitutionally  assign 
to  the  judiciary  any  duties  but  such  as  are  appropriate 
thereto  and  to  be  performed  in  a  judicial  manner;  that 
the  duties  assigned  by  this  act  make  the  decision  of 
the  court  subject  to  the  consideration  and  suspension 
of  the  Secretary  of  War  and  legislature, — whereas  by 
the  constitution  neither  the  Secretary  of  War  nor  other 
executive  officer  is  authorized  to  sit  as  a  court  of  error 
upon  the  judicial  opinions  of  this  court.  Such  revision 
and  control  are  deemed  radically  inconsistent  with  the 
independence  of  that  judicial  power  which  is  vested  in 
the  court,  The  legislative,  executive  and  judicial  de- 
partments are  each  formed  in  a  separate  and  independent 
manner,  and  the  basis  of  each  is  the  constitution,  only 
within  the  limits  of  which  each  department  can  alone 
justify  any  act  of  authority;  that  as  the  objects  of  this 

(91) 


£   23  ADMINISTRATIVE    LAW.  [Ch.    3 

act  arc  exceedingly  benevolent  and  do  real  honor  to  the 
limn  unity  and  justice  of  Congress,  the  judges  will  execute 
this  act  in  the  capacity  of  commissioners. 

The  Circuit  Court  for  the  district  of  Pennsylvania 
at  the  same  time  addressed  a  memorial  to  the  President 
in  which  they  say :  Upon  due  consideration  we  have 
been  unanimously  of  opinion  that  the  court  should  not 
proceed.  1st:  Because  the  business  directed  by  this 
act  is  not  of  a  judicial  nature.  2nd :  Because  if  upon 
this  business  the  court  had  proceeded,  its  judgments 
might  have  been  revised  and  controlled  by  the  legisla- 
ture, and  by  an  officer  in  the  executive  department. 
Such  revision  and  control  we  deem  inconsistent  with  the 
independence  of  the  department. 

The  Supreme  Court,  however,  stood  firm  and  it  has 
been  the  law  of  that  court  ever  since  that  the  judiciary 
would  not  exercise  powers,  administrative  in  last  an- 
alysis. The  various  decisions  delivered  in  the  course  of 
the  growth  of  the  Court  of  Claims  show  how  strictly  the 
courts  hold  to  this  rule.  Not  until  the  Court  of  Claims 
had  been  made,  in  every  essential,  part  of  the  judicial 
system  would  the  Supreme  Court  of  the  United  States 
entertain  any  appeal  from  it.  How  they  stand  now 
upon  that  position  is  shown  by  In  Ke  Sanborn,  148 
U.  S.  222  (1893).  One  part  of  the  functions  of  the 
Court  of  Claims  was  defined  as  follows:  that  when  any 
claim  or  matter  may  be  pending  in  any  of  the  executive 
departments  which  involves  controverted  questions  of 
law  or  fact,  the  head  of  such  department,  with  the  con- 
sent of  the  claimant,  may  transmit  the  same  to  the  Court 
of  Claims.  When  the  facts  and  conclusions  of  law  shall 
have  been  found  the  court  shall  report  its  findings  to  the 
(92) 


Ch.    3]  ITS  INDEPENDENCE.  £    23 

department  by  which  it  was  transmitted.  In  the  pres- 
ent case  the  claim  of  Sanborn  had  been  sent  from  the 
Department  of  Interior  to  the  Court  of  Claims.  The 
court  decided  that  Sanborn  was  not  entitled  to  recover. 
Thereupon,  he  made  application  to  be  allowed  to  appeal 
to  the  Supreme  Court  of  the  United  States,  which  was  de- 
nied. 

This  is  not  a  judgment,  said  Mr.  Justice  Shiras: 
Such  a  finding  is  not  made  obligatory  upon  the  depart- 
ment to  which  it  was  reported — certainly  not  so  in  terms 
— and  so  far  as  we  think  by  any  necessary  implication. 
We  regard  the  functions  of  the  Court  of  Claims  in  such 
a  case  as  advisory  only.  The  finding  or  conclusion 
reached  by  that  court  is  not  enforceable  by  any  process 
of  execution  issuing  from  the  court,  nor  is  it  made  by 
statute,  the  final  indisputable  basis  of  action  either  by 
the  department  or  by  Congress.  The  application  for 
mandamus  must  accordingly  be  denied. 

The  doctrine  at  the  bottom  of  these  decisions  is  cer- 
tainly of  a  fundamental  importance  in  any  conception 
of  the  proper  distribution  of  the  powers  of  government. 
In  these  particular  instances  of  it  the  principles  are 
these:  the  position  given  to  the  judiciary  department 
to  pass  in  first  instance  upon  a  matter  which  should  later 
be  passed  upon  in  second  instance  by  the  executive  de- 
partment was  contrary  to  the  constitution  in  that  this 
process  involved  the  subordination  of  the  judiciary  de- 
partment in  this  determination,  whereas  by  the  con- 
stitution all  of  the  three  departments  must  be  co-or- 
dinate. From  another  approach  also  this  legislation 
was  open  to  constitutional  objection  :  the  power  of  grant- 
ing pensions  was  in  its  nature  an  administrative  power, 

(93) 


£   24  ADMINISTRATIVE    LAW.  [Ch.   3 

since  it  involved  the  execution  of  law;  not  a  judicial 
power  properly,  since  it  did  not  involve  litigation  be- 
tween man  and  man;  it  would  be  therefore  contrary  to 
the  constitution  to  force  powers  not  judicial  upon  the 
judiciary.  Which  comes  to  this:  that  under  our  con- 
stitution confusion  of  powers  may  not  be  permitted. 
If  a  principle  like  that  is  once  admitted  it  must  be  of 
universal  application.1 8 

§  24.     Confusion. 

The  rule  of  distribution  of  functions  will  always  be 
violated  if  in  the  apportionment  of  powers  to  an  ad- 
ministrative body,  powers  belonging  to  any  other  de- 
partment are  given.  For  one  instance,  suppose  that  an 
administrative  body  is  given  legislative  power.  That  is 
the  case,  it  seems,  in  Ex  parte  Cox.  63  Cal.  21  (1883). 
The  petitioner  was  convicted  of  a  misdemeanor,  the  vio- 
lation of  a  rule  and  regulation  of  a  Board  of  State  Agri- 
cultural Commissioners.  The  act  establishing  that  com- 
mission declared  it  had  power  to  enforce  rules  and  regu- 
lations in  the  nature  of  quarantine  to  govern  the  manner 
of  and  prohibit  the  importation  into  the  state  of  vines  or 
cuttings  infected  or  likely  to  cause  infection.  The  pris- 
oner had  violated  some  regulation  to  which  the  board  had 
attached  a  penalty.     The  court  ordered  his  discharge; 

is  Distribution. — Hayburn's  Case,  2  Dall.  409;  Gordon  v.  U.  S. 
2  Wall.  561;  U.  S.  v.  Alire.  6  Wall.  573;  In  Re  Sanborn,  148  IT.  S. 
222;  Hempstead  v.  Underbill's  Heirs,  20  Ark.  337:  Ex  parte  Allis.  12 
Ark.  101;  Ex  parte  Shrader.  33  Cal.  279;  McAVhorter  v.  Pensacola  R. 
R.,  24  Fla.  417;  Chicago,  etc.,  R.  R.  v.  Jones,  149  111.  361:  Portland. 
etc..  R.  R.  v.  Grand,  etc.,  R.  R.,  46  Me.  69;  Dow  v.  Wakefield.  103 
Mass.  267;  Andrews  v.  Judge  of  Probate.  74  Mich.  278:  Pacific  Exp. 
Co.  v.  Cornell,  59  Neb.  364;  Atlantic,  etc.,  Co.  v.  Wilmington,  etc..  R. 
R.,  Ill  N.  C.  463. 

(94) 


<^h.    3|  ITS  INDEPENDENCE.  §   24 

they  said:  For  the  purpose  of  local  legislation,  legis- 
lative functions  may  be  delegated.  But  the  legislature 
had  not  authority  to  confer  upon  the  board  the  power 
of  declaring  what  acts  should  constitute  a  misdemeanor. 
The  legislative  power  is  vested  in  the  legislature;  it 
cannot  be  attempted  to  confer  that  power  upon  any 
officers  of  the  executive  department. 

As  a  second  instance,  suppose  an  administrative  body 
is  given  a  power  which  it  is  plain  is  judicial.  Whether 
that  can  be  is  discussed  in  Interstate  Commerce  Com- 
mission v.  Brlmson,  154  U.  S.  447  (1894).  The  petition 
in  this  case  was  based  on  the  twelfth  section  of  the  act 
authorizing  the  Interstate  Commerce  Commission  to 
invoke  the  aid  of  any  court  of  the  United  States  in  re- 
quiring the  attendance  and  testimony  of  witnesses,  and 
the  production  of  documents,  books,  and  papers.  The 
Circuit  ( Ymrt  held  the.  provision  unconstitutional  and 
void  as  involving  a  confusion  of  the  powers  of  govern- 
ment, giving  to  an  administrative  commission  the  aid 
of  judicial  process,  and  forcing  upon  the  judiciary  func- 
tions not  judicial.  The  question  was  whether  this  was 
forbidden  by  the  constitution,  without  which  obviously 
effective  enforcement  of  the  interstate  commerce  laws 
could  not  be  effected. 

Mr.  Justice  Harlan  recited  the  provisions  of  the  in- 
terstate commerce  law  at  great  length;  he  continued: 
As  the  constitution  extends  the  judicial  power  of  the 
United  States  to  all  cases  in  law  and  equity,  the  fun- 
damental inquiry  upon  this  appeal  is  whether  the  pres- 
ent proceeding  is  a  case  or  controversy  within  the  mean- 
ing of  the  constitution.  It  was  clearly  competent  for 
Congress  to   invest   the   commission   with  authority  to 

(95) 


g   24  ADMINISTRATIVE    LAW.  [£h.    3 

require  the  attendance  and  testimony  of  witnesses,  and 
the  production  of  books,  papers,  tariffs,  contracts,  agree- 
ments, and  documents  relating  to  any  matter  committed 
to  that  body  for  investigation.  We  do  not  understand 
that  any  of  these  propositions  are  disputed  in  this  case. 
The  constitutionality  of  this  provision,  assuming  it  To 
be  applicable  to  a  matter  that  may  legally  be  intrusted 
to  an  administrative  body  for  investigation  is,  we  re- 
peat, not  disputed,  and  is  beyond  dispute.  They  are  is- 
sues between  the  United  States  and  those  who  seek  to  ob- 
struct the  enforcement  of  its  laws;  it  thus  conies  with- 
in the  judicial  power. 

This  preliminary  view  of  the  whole  field  cannot  but 
establish  as  a  working  hypothesis  this  general  rule 
against  the  confusion  of  powers  as  an  elementary  doc- 
trine of  constitutional  law  under  our  system.  If  this  be 
proved  true  in  entirety  for  every  case  that  is  fairly  with- 
in its  inhibition  the  consequence  in  administration  will 
be  of  the  first  importance.  It  will  result  that  the  ex- 
ecutive department  must  always  be  independent  of  the 
other  departments  in  its  proper  sphere;  more  than  that, 
that  all  administration  must  be  handed  over  to  tie 
executive  department.  Of  course,  it  must  not  be  for- 
gotten in  the  application  of  this  principle  that  the 
business  of  government  is  a  practical  matter,  not  to 
be  too  much  hampered  by  the  application  of  some  gen 
eral  principle  where  there  is  an  unsubstantial  depart- 
ure involved  in  any  case.  Every  scope  must  be  given 
in  the  creation  of  governmental  agencies  and  in  the 
organization  of  them.  The  proper  place  for  this  prin- 
ciple, it  is  submitted,  is  in  reserve,  to  be  invoked  when- 
ever a  substantial  departure  from  the  fundamental  prin- 
(96) 


Ch.   3]  ITS  INDEPENDENCE.  §   25 

ciple  is  involved.  The  cases  discussed  in  this  section 
indicate  in  a  general  way  what  may  be  done  and  what 
may  not  be  done.  What  may  not  be  enacted  is  overt 
confusion  of  powers — the  giving  of  a  legislative  func- 
tion to  the  administration.  What  may  be  provided  is 
some  co-operation  between  the  departments — the  lend- 
ing to  the  administration  of  the  process  of  the  courts. 
This,  it  is  suggested,  is  the  solution  of  this  problem 
in  accordance  with  constitutional  law  under  our  sys- 
tem of  government  with  its  three  departments — inde- 
pendence with  inter-relation.19 

§  25.     Conclusion. 

In  a  previous  discussion  a  rule  was  laid  down  for 
the  position  of  the  administration  with  two  branches. 
That  for  action  as  an  individual  the  officer  might  be 
impleaded  in  the  courts  as  a  private  wrongdoer;  but 
that  for  action  as  an  official  the  officer  might  not  be 
impleaded.  The  present  discussion  of  the  independ- 
ence of  the  administration  does  not  conflict  with  that. 
Action  of  an  official  as  a  representative  of  the  execu- 
tive department  the  judiciary  department  can  take  no 
cognizance  of,  still  less  can  it  enter  upon  review  upon 
any  appeal;  but  for  individual  action  without  author- 
ity of  his  position  the  officer  may  be  proceeded  against 
in  the  courts  more  or  less  as  any  wrongdoer.     This  is 

i9  Confusion.— La  Abra  Co.  v.  United  States,  175  U.  S.  423; 
Western  Union  Tel.  Co.  v.  Henderson,  68  Fed.  588;  Ex  Parte  Allen, 
26  Ark.  9;  Ex  Parte  Cox,  63  Cal.  21;  State  v.  Johnson,  30  Fla.  499; 
People  v.  Kipley,  171  111.  44;  Shoultz  v.  McPheeters,  79  Ind.  373; 
In  Re  Sims,  54  Kan.  1;  Speed  v.  Crawford,  3  Mete.  (Ky.)  207;  Hart- 
ford Insurance  Co.  v.  Raymond,  70  Mich.  485;  State  v.  Hathaway, 
115  Mo.  36;  Thorp  v.  Woolman,  1  Mont.  168;  Turner  v.  Althaus, 
6  Neb.  54;  Taylor  v.  Place,  4  R.  I.  338;  Gough  v.  Dorsey,  27  Wis.  119. 

(97) 

Adm.  Law — 7. 


§   25  ADMINISTRATIVE    LAW.  [<jh.   3 

the  solution  in  the  administrative  law  of  the  United 
States  again,  the  distinction  between  the  two  capacities 
of  the  official,  as  an  officer  and  as  a  man.  As  an  officer 
the  official  stands  with  his  department  and  may  claim 
its  immunity;  as  a  man  he  stands  in  the  same  place 
as  other  men.  That  is  certainly,  when  all  is  said,  the 
characteristic  of  the  administrative  law  under  our  sys- 
tem, that  these  capacities  are  never  in  any  material 
way  to  be  confused.  And  the  consequence  is  a  free 
government,  acting  within  its  discretion,  and  a  free  peo- 
ple, protected  in  all  their  rights.  This  is  the  peculiar 
distinction  of  our  system  of  administrative  law. 
(98) 


CHAPTER  IV. 

THE    POWERS    OF    ADMINISTRATION. 

§  26.  Introduction. 

27.  Political  Powers. 

28.  Foreign. 

29.  Interior. 

30.  Governmental  Powers. 

31.  Domestic. 

32.  Colonial. 

33.  Conclusion. 

§  26.     Introduction. 

The  functions  of  the  administration  are  of  two  sorts. 
To  put  the  distinction  in  the  more  usual  terms,  these  are : 
its  executive  functions  and  its  administrative  functions. 
The  administration  in  truth  has  this  double  aspect; 
but  these  functions  are  in  one  sense  interdependent. 
In  the  pursuance  of  its  executive  functions,  the  admin- 
istration exercises  inherent  powers;  while  in  its  ad- 
ministrative functions,  it  perforins  derivative  duties. 
In  an  extended  discussion  of  this  situation  it  may  be 
said  that  the  executive  functions  are  powers,  while  the 
administrative  functions  are  duties;  but  in  truth  in 
each  case  there  is  power  and  duty  both. 

Executive  powers,  then,  are  inherent,  because  the 
basis  of  them  is  the  constitution  itself.  In  the  exercise 
of  executive  powers  the  executive  is  upon  the  same  basis 
as  the  legislative  or  judiciary.  The  action  of  all  of 
these  alike  is  the  expression  of  the  will  of  the  state. 
In  such  acts  the  executive  is  the  head  of  the  state;  he 

(99) 


§   26  ADMINISTRATIVE    LAW.  [Ch.   4 

conducts  foreign  negotiations;  he  leads  armies;  he 
grants  amnesty;  he  promulgates  proclamations.  Exec- 
utive powers  are  primary;  in  every  such  action  the 
executive  acts  of  his  own  motion,  makes  his  own  de- 
cisions, draws  his  own  conclusions,  enforces  his  own 
decrees.  As  it  is  this  aspect  of  the  administration  that 
one  is  prone  to  think  of  when  comparing  the  functions 
of  this  department  with  the  legislative  department  and 
with  the  judiciary  department,  the  department  is  in 
most  discussion  denominated  the  executive  department. 
Administrative  duties  are  derivative.  The  direction 
of  these  functions  is  to  the  enforcement  of  the  laws; 
the  laws  must  therefore  precede  the  exercise  of  these 
functions.  There  must  be  law  for  enforcement  before 
there  can  be  administration;  the  functions  of  the  legis- 
lature, therefore,  must  be  first  exercised,  these  in  turn 
creating  duties  for  the  administration  to  perform.  Ad- 
ministrative functions,  then,  are  secondary  in  a  way. 
since  the  duty  is  to  enforce  a  general  law  made  and 
provided  in  a  particular  case.  Enforcement  of  the  law 
may  then  be  conceived  of  as  itself  obedience  to  the  com- 
mand of  the  law.  But  the  command  of  the  law  is  not 
often  absolute;  it  is  in  the  usual  case  conditional,  so 
that  the  officer  has  an  independent  position  in  his  dis- 
cretion. 

Such  is  the  distinction  between  executive  powers  and 
administrative  duties  which  is  proposed  as  the  basis 
for  discussion.  And  yet,  after  all,  it  may  prove  that 
the  distinction  between  these  two  does  not  go  to  the 
bottom;  at  bottom  they  may  be  alike  in  essentials.  In 
pursuance  of  administrative  functions,  the  department 
may  well  require  the  position  of  an  executive.  More 
(100) 


Ch.   4]  POWERS  OP  ADMINISTRATION.  g    27 

than  this,  in  seeing  the  laws  faithfully  executed  the 
head  of  the  department  may  prove  in  truth  an  execu- 
tive. At  all  events  the  administration  in  the  exercise 
of  executive  and  administrative  powers  together  pre- 
sents a  certain  unity  to  the  observer,  as  if  the  business 
of  the  administration  were  all  one,  after  all,  however 
difficult  it  may  be  to  explain  this. 

§  27.     Political  powers. 

One  of  the  highest  powers  of  the  executive  is  seen  in 
the  determination  of  political  questions.  It  may  be 
well  to  give  several  instances  of  the  exercise  of  such 
powers;  since  in  no  other  line  of  cases  is  the  position 
of  the  executive  so  well  established.  One  of  the  earlier 
decisions  upon  this  question  is  Foster  v.  Xeilson,  2 
Pet.  253  (1829).  This  case  arose  under  the  eighth 
article  of  the  treaty  between  the  United  States  and 
Spain  in  1818,  which  provided  for  the  determination 
of  private  rights.  It  was  a  suit  brought  to  recover  a 
tract  of  land  to  the  east  of  the  Mississippi,  claiming 
upon  a  grant  made  by  the  Spanish  government  in  1801. 
The  exception  involved  the  defense  that  the  grant  was 
void;  upon  the  ground  that  the  territory  in  question 
at  the  time  of  the  grant  belonged  to  the  United  States, 
not  to  Spain.     How  should  such  an  issue  be  determined? 

The  opinion  in  this  case  has  weight  in  a  constitutional 
discussion,  as  it  is  by  Chief  Justice  Marshall.  The 
question  presented  is,  to  whom  did  the  country  between 
the  Iberville  and  Perdido  rightfully  belong  when  the 
title  now  asserted  was  acquired.  The  question  has  been 
repeatedly  discussed  by  the  government  of  the  United 
States  with  that  of  Spain.  In  a  controversy  between 
two  nations  concerning  national  boundaries  it  is  scarcely 

(101) 


g   27  ADMINISTRATIVE    LAW.  [Ch.    4 

possible  that  the  courts  of  either  should  refuse  to  abide 
by  the  measures  adopted  by  its  own  government.  The 
judiciary  is  not  that  department  of  the  government 
to  which  the  assertion  of  its  interest  against  foreign 
powers  is  confided.  Its  duty  is  to  decide  upon  indi- 
vidual rights  according  to  those  principles  which  the 
political  departments  of  the  nation  have  established. 
A  question  respecting  the  boundaries  of  nations  is  more 
a  political  than  a  legal  question ;  and  in  its  discussion 
the  courts  of  other  countries  must  respect  the  will  of 
the  political  departments.  Another  decision  would  sub- 
vert those  principles  which  govern  the  relations  be- 
tween the  departments  and  mark  the  limits  of  each. 
The  separation  of  powers,  it  is  to  be  noted,  is  said  to 
be  at  the  bottom  of  this  doctrine  and  the  consequence 
is  therefore  established — the  independence  of  the  de- 
partment. 

An  amplification  of  this  doctrine  is  seen  in  such  cases 
as  Williams  v.  Suffolk  Insurance  Company,  13  Pet.  415 
(1839).  The  schooner  Harriet,  insured  for  a  sealing 
voyage,  was  ordered  by  the  government  at  Buenos  Ayres 
not  to  catch  seal  off  the  Falkland  Islands.  The  master 
refused  to  abandon  the  enterprise  in  response  to  these 
threats  upon  the  ground  that  the  islands  were  not  sub- 
ject to  the  jurisdiction  of  that  government.  The  re- 
sult was  that  the  vessels  were  captured  and  condemned 
by  the  Buenos  Ayres  authorities.  When  suit  was  later 
brought  upon  the  policies,  which  covered  any  loss  what- 
ever, the  underwriters  tried  to  make  out  a  defense  based 
upon  the  circumstances  detailed. 

The  court  would  not  go  into  evidence  to  determine 
what  state  had  sovereignty  over  the  islands ;  it  informed 
(102) 


Ch.   4]  POWERS  OF  ADMINISTRATION.  §   37 

itself  by  inquiry  what  position  the  executive  department 
had  taken.  Mr.  Justice  McLean  upon  this  report  stated 
the  conclusion  of  the  court;  he  said:  The  American 
government  has  insisted,  through  its  regular  executive 
authority,  that  the  Falkland  Islands  do  not  constitute 
any  part  of  the  dominions  within  the  sovereignty  of 
the  government  of  Buenos  Ayres.  There  cannot  be  any 
doubt  that  when  the  executive  branch  of  the  govern- 
ment which  is  charged  with  our  foreign  relations  shall 
in  its  correspondence  with  the  foreign  nations  assume 
a  fact  in  regard  to  the  sovereignty  of  any  island  or  coun- 
try, it  is  conclusive  on  the  judicial  department.  In  this 
view  it  is  not  material  to  inquire,  it  is  not  the  province 
of  the  court  to  determine,  whether  the  executive  be  right 
or  wrong;  it  is  enough  to  know  that  in  the  exercise  of 
his  constitutional  function  he  has  decided  the  question. 
Having  shown  this  under  the  responsibility  which  be- 
longs to  him,  it  is  obligatory  on  the  government;  and 
we  think  in  the  present  case,  as  the  executive  has  viewed 
the  jurisdiction,  the  fact  must  be  taken  and  acted  on 
by  this  court  as  thus  asserted  and  maintained.  The 
decision  of  the  first  point  materially  affects  the  second, 
which  turns  on  the  conduct  of  the  master,  who  held 
that  he  was  not  appointed  to  decide  but  might  law- 
fully stand  on  his  right  against  all  governments  not  hav- 
ing jurisdiction.  The  underwriters  are  therefore  not 
discharged.  This  decision  without  doubt  expresses  the 
general  law  upon  this  whole  question.20 

-"Political  Powers. — Nabob  v.  East  India  Co.,  1  Ves.  Jr.  37,5; 
Sullivan  v.  Earl  Spencer,  Ir.  R.  6  C.  L.  173;  Foster  v.  Neilson, 
2  Pet.  307;  Luther  v.  Borden,  7  How.  39;  Mississippi  v.  Johnson, 
4  Wall.  500;  Georgia  v.  Stanton,  6  Wall.  77;  Jones  v.  United  States, 
137  U.  S.  212;   In  Re  Cooper,  143  U.  S.  503;   Quackenbush  v.  United 

(  LOS) 


£    28  ADMINISTRATIVE    LAW.  |Xh.    4 

1 28.     Foreign. 

The  question  of  the  recognition  of  the  independence 
of  states  just  decided  must,  it  would  seem,  settle  all 
questions  as  to  the  recognition  of  belligerency  in  states; 
since  the  greater  must  include  the  less.  However,  it 
mav  be  well  to  cite  one  leading  case  in  this  matter  of 
belligerency,  since  at  times  the  problem  has  prominence. 
A  case  always  mentioned  at  such  times  is  United  States 
v.  Palmer,  3  Wheat.  610  (1818).  This  case  was  cer- 
tified from  the  Circuit  Court  upon  division  of  opinion 
as  to  the  rights  of  belligerent  cruisers  of  an  unrecog- 
nized community;  whether  captures  of  the  same  con- 
stitute piracy.  For,  of  course,  unless  the  bare  facts 
could  be  qualified  by  some  doctrines  of  the  law  of  war, 
the  acts  were  acts  of  pirates. 

In  the  course  of  the  discussion  of  this  case  Chief 
Justice  Marshall  said:  Questions  which  respect  the 
rights  of  a  part  of  a  foreign  empire  which  asserts  and 
is  contending  for  independence  are  generally  rather 
political  than  legal  in  that  character.  They  belong 
more  properly  to  those  who  can  declare  what  the  law 
shall  be,  and  who  control  the  political  designs  of  the 
nation.     The  proceedings  in  the  court  must  depend  upon 

States,  177  U.  S.  25;  Taylor  v.  Beckham,  178  U.  S.  578;  Latham 
v.  Clark.  25  Ark.  574;  Haley  v.  Clark,  26  Ala.  439;  In  re  Archy.  9 
Cal.  147;  Land  Co.  v.  Routt,  17  Colo.  156;  State  v.  Bulkeley,  61  Conn. 
287;  McWhorter  v.  Pensaeola  R.  Co.,  24  Fla.  417;  Hilliard  v.  Connel- 
ly, 7  Ga.  179;  People  v.  Supervisors,  100  111.  495;  State  v.  Hyde.  121 
Ind.  20;  State  v.  Wagner,  61  Me.  178;  Larcom  v.  Olin,  160  Mass.  102; 
Chamberlain  v.  Sibley,  4  Minn.  309;  People  v.  Hurlbut,  24  Mich.  63; 
Morton  v.  Green,  2  Neb.  441;  Thompson  v.  Canal  Fund  Com'rs.  2 
Abb.  Prac.  248;  State  v.  Chase,  5  Oh.  St.  528;  Taylor  v.  Place,  4  R.. 
I.  338;  State  v.  McMillan,  52  S.  C.  69:  Druecker  v.  Salomon.  21  Wis. 
621. 

(104) 


Ch.    4]  POWERS  OF  ADMINISTRATION.  ^    28 

the  course  of  the  government,  therefore  the  courts  can- 
not condemn  when  the  attitude  of  the  government  is 
declared.  And  so  this  is  to  be  held  no  piracy.  The 
courts  of  the  Union  must  view  any  newly  constituted 
government  as  it  is  viewed  by  the  legislative  and  execu- 
tive departments  of  the  government  of  the  United  States. 
If  the  government  remains  neutral,  the  courts  of  the 
Union  cannot  consider  as  criminal  those  acts  of  hostil- 
ity which  the  war  authorizes. 

Upon  the  same  basis,  the  executive  in  all  international 
negotiations  must  have  entire  independence.  This  is 
shown  in  the  long  litigation  in  regard  to  the  La  Abra 
award,  in  which  again  and  again  it  was  attempted  to 
bring  the  action  of  the  department  under  the  review 
of  the  judiciary.  The  most  important  of  the  cases  is 
United  States  v.  Blaine,  139  U.  S.  306  (1891).  The 
act  of  June  18,  1878,  subjected  specifically  the  pay- 
ment of  the  Weil  and  La  Abra  awards,  under  the 
Mexican  Claims  Commission,  to  the  control  of  the 
President.  One  Boynton  sought  mandamus  in  the 
Supreme  Court  of  the  District  of  Columbia  against 
Blaine,  then  Secretary  of  State,  for  a  mandamus  to 
compel  him  to  pay  the  petitioner  as  assignee  of  the 
Weil  claim.  The  Secretary  set  up  the  plea  that  the 
President  had  forbidden  the  payment;  that  he  held  it 
as  agent  of  the  President;  that  the  matter  fell  exclu- 
sively within  the  powers  and  competency  of  the  Presi- 
dent ;  and  that  the  Secretary  as  subordinate  to  him 
and  subject  to  his  direction  and  control,  was  in  nowise 
subject  to  the  jurisdiction  and  competency  of  the  ju- 
dicial department  of  the  government  of  the  United 
States.     That   as   it    would    involve   an    interference   by 

(105) 


£    28  ADMINISTRATIVE    LAW.  [Ch.    4 

the  said  judicial  department  with  a  matter  which  was 
exclusively  committed  by  the  constitution  to  its  co- 
ordinate, the  executive,  department,  the  court  should 
therefore  take  no  cognizance  of  the  matter  of  the  re- 
lator's petition. 

Chief  Justice  Fuller  disposed  of  the  case  in  this 
wise :  The  writ  of  mandamus  cannot  issue  in  a  case 
where  its  effect  is  to  direct  or  control  the  head  of  an 
executive  department  in  the  discharge  of  an  executive 
duty,  involving*  the  exercise  of  judgment  or  discretion. 
In  view  of  these  settled  principles,  could  the  relator  be 
entitled  to  his  writ?  International  arbitration  must 
always  proceed  on  the  highest  principles  of  national 
honor  and  integrity.  (Maims  presented  and  evidence 
submitted  to  such  an  arbitration  must  necessarily  bear 
the  impress  of  entire  good  faith.  No  technical  rules 
of  pleading,  as  applied  to  judicial  courts,  ought  ever  to 
be  allowed  to  stand  in  the  way  of  national  power  to 
do  what  is  right  under  all  circumstances.  Every  citi- 
zen who  asks  the  intervention  of  his  own  government 
against  another  must  necessarily  subject  himself  and 
his  claim  to  these  requirements  of  international  comity. 
This  is  a  consequence  of  the  political  trust  with  which 
every  government  is  charged  with  respect  to  its  own 
citizens.  The  act  of  Congress  cannot  undertake  to  set 
any  new  limits  on  the  powers  of  the  executive.  From 
beginning  to  end  it  is  in  form,  even,  only  a  request 
from  Congress  to  the  executive.  It  is  far  from  making 
the  President  for  the  time  being  a  quasi  tribunal.  So 
long  as  the  political  branch  of  the  government  had 
not  lost  its  control  over  the  subject  matters  by  final 
action,  the  claimant  was  not  in  position,  as  between 
(106) 


Ch.  4]  POWERS  OF  ADMINISTRATION.  §28 

himself  and  the  government,  to  insist  on  the  conclu- 
siveness of  the  award  as  to  him.  On  the  contrary  the 
control  was  expressly  reserved  and  made  the  duty  of 
the  President.  The  writ  of  mandamus  cannot  issue 
in  a  case  where  its  effect  is  to  direct  or  control  the 
head  of  an  executive  department  in  the  discharge  of 
an  executive  duty  involving  the  exercise  of  judgment 
and  discretion.  The  political  department  has  no  doubt 
of  its  power  over  the  matter;  and  the  intervention  of 
the  judicial  department  cannot  now  be  invoked. 

These  diverse  cases  certainly  are  enough  to  establish 
that  in  governmental  action  the  executive  department 
ran  in  no  way  be  controlled.  Certainly,  these  few  cases 
are  not  enough  to  give  any  definite  conception  as  to 
what  the  function  of  the  executive  in  government  is. 
However,  it  must  be  obvious  by  this  time  that  the  exec- 
utive has  a  part  in  government  that  is  its  own.  Under 
our  constitutional  system  many  of  the  highest  matters 
of  state  are  intrusted  to  the  executive  department. 
What  these  shall  be  in  a  broad  way  is  a  question  for 
specification  in  the  constitution.  It  cannot  be  said  in 
how  many  ways  the  executive  has  governmental  func- 
tions without  reference  to  the  constitution  itself.  But 
when  an  executive  power  is  found  the  independence  of 
it  must  be  conceded.21 

-'i  Foreign. — Rose  v.  Himely,  4  Cranch  272;  United  States  v. 
Arredondo,  6  Pet.  711;  Williams  v.  Suffolk  Insurance  Co.,  13  Pet. 
420;  Gelston  v.  Hoyt,  3  Wheaton  324;  United  States  v.  Palmer,  3 
Wheaton  634;  The  Divina  Pastora,  4  Wheaton  63;  The  Santissima 
Trinidad,  7  Wheaton  283;  Kennett  v.  Chambers,  14  How.  50;  Bay- 
ard v.  White,  127  U.  S.  246;  Jones  v.  United  States,  137  U.  S.  212; 
Fong  Yue  Ting  v.  United  States,  149  U.  S.  712;  Durand  v.  Hollins, 
4  Blatchf.   454. 

(107) 


§   29  ADMINISTRATIVE    LAW.  [Ch.   4 

§  29.     Interior. 

Adherence  to  this  principle  often  leads  to  results 
which  startle  one.  The  case  of  In  Re  Cooper,  143  U.  S. 
472  (1892),  illumines  the  discussion  like  a  flash  of 
lightning.  This  was  an  application  to  the  Supreme 
Court  by  the  owners  of  the  Canadian  schooner  Sayward, 
for  a  writ  of  prohibition  to  the  District  Court  for  Alaska 
to  restrain  the  enforcement  of  a  sentence  of  forfeiture 
and  condemnation  against  the  vessel.  At  the  time  dip- 
lomatic correspondence  was  in  progress  between  the 
United  States  and  Great  Britain  as  to  the  proper  ex- 
tent of  the  jurisdiction  of  the  United  States  over  the 
waters  of  Behring  Sea.  The  Sayward  had  been  seized 
by  the  United  States  revenue  cutter  Rush  in  latitude 
44°  43'  north  and  longitude  167°  51'  west,  fifty-nine 
miles  from  any  land  whatever.  The  schooner  was  en- 
gaged when  captured  in  pelagic  sealing,  the  indiscrimi- 
nate shooting  of  fur  seals  at  sea.  The  commanding 
officer  of  the  Rush  made  the  seizure  in  pursuance  of 
express  orders  issuing  from  the  Treasury  Department 
at  Washington,  covering  his  action  within  these  waters. 

Mr.  Chief  Justice  Fuller  dealt  with  the  problem  in 
a  large  way:  How  did  it  happen  that  the  officers  re- 
ceived such  orders?  It  must  be  admitted  that  they 
were  given  in  assertion  on  the  part  of  this  government 
of  territorial  jurisdiction  over  Behring  Sea  to  an  ex- 
tent exceeding  fifty-nine  miles  from  the  shore  of  Alaska  ; 
that  this  territorial  jurisdiction  in  the  enforcement  of 
the  laws  protecting  seal  fisheries  was  asserted  by  actual 
seizures  during  the  seasons  of  1886,  1887  and  1889  of 
a  number  of  British  vessels;  that  the  government  per- 
sistently maintains  that  such  jurisdiction  belongs  to  it ; 
(108) 


Cfcu   4]  POWERS  OF  ADMINISTRATION.  ^   29 

and  that  negotiations  are  pending  on  the  subject.  It 
is  conceded  that  in  matters  committed  by  the  consti- 
tution and  the  laws  of  the  United  States  either  to  Con- 
gress or  the  executive  or  to  both,  courts  are  clearly 
bound  b}*  the  action  of  Congress  or  the  executive  or 
both,  within  the  limits  of  the  authority  conferred.  The 
executive  power  can  alone  speak  so  as  to  bind  our  courts 
in  respect  to  the  sovereignty  of  foreign  territory,  the 
changes  in  foreign  governments,  the  existence  of  civil 
war  in  foreign  countries,  and  the  character  of  a  foreign 
minister.  The  application  calls  upon  the  court  to  de- 
cide whether  the  government  is  right  or  wrong  and  to 
review  the  action  of  the  political  departments  upon  the 
question,  contrary  to  the  law  upon  that  question. 

In  this  connection  a  case  that  is  worth  careful  dis- 
cussion is  Luther  v.  Borden,  7  How.  1  (1849),  because 
of  the  relations  between  the  nation  and  the  states  com- 
posing the  Union  that  are  involved.  This  litigation 
arose  out  of  the  Dorr  Rebellion,  so  remembered,  in 
Rhode  Island  in  1841.  Rhode  Island  had  kept  on  un- 
der her  colonial  charter,  which  provided  no  way  of 
amendment.  This  led  to  a  political  revolt  by  a  portion 
of  the  people,  who  held  a  convention,  which  submitted  a 
constitution,  and  who  thereupon  held  elections,  declared 
their  candidates  elected.  All  this  time  the  charter  gov- 
ernment held  to  its  position.  The  consequence  was  that 
several  encounters  more  or  less  violent  took  place.  In 
the  particular  case,  one  of  the  constitutional  side  was 
arrested  and  his  house  searched;  he  thereupon  sued  an 
officer  of  the  charter  government.  The  defense  was 
necessary  acts  performed  by  them  as  duly  authorized 
acts  of  the  state  government  during  a  state  of  military 

necessity. 

(109) 


g   29  ADMINISTRATIVE    LAW.  [Ch.   4 

The  determination  of  such  issues  was  indeed  a  delicate 
matter;  and  the  caution  with  which  Chief  Justice  Taney 
proceeds  is  noticeable,  in  his  desire  that  the  judiciary 
may  not  seem  to  intrude  into  questions  political  in  their 
nature :  The  question  which  the  plaintiff  raised  has 
not  been  recognized  as  judicial  in  any  of  the  state 
courts,  but  the  courts  uniformly  held  that  the  inquiry 
proposed  to  be  made  belonged  to  the  political  power 
and  not  to  the  judicial,  though  it  rested  with  the  po- 
litical power  to  decide  whether  the  charter  government 
has  been  displaced  or  not,  and  when  that  decision  was 
made  the  judicial  department  would  be  bound  to  take 
notice  of  it  as  the  law  of  the  state  without  the  aid  of 
oral  evidence  or  the  examination  of  witnesses.  We  do 
not  see  how  the  question  could  be  judicially  decided  in 
a  state  court.  Judicial  power  presupposes  established 
government  capable  of  enacting  laws  and  enforcing  their 
execution  and  of  appointing  judges  to  expound  and  ad- 
minister them.  Acceptance  of  the  judicial  office  is  rec- 
ognition of  the  authority  of  the  government  from  which 
it  is  derived.  If  it  decides  at  all  as  a  court,  it  neces- 
sarily affirms  the  existence  and  authority  of  the  gov- 
ernment under  which  it  is  exercising  judicial  powers. 
The  constitution  of  the  United  States,  as  far  as  it  has 
provided  for  an  emergency  of  this  kind,  has  treated 
the  subject  as  political  in  nature  and  placed  the  power 
in  the  hands  of  that  department.  The  judicial  power 
is  at  that  time  bound  to  follow  the  decision  of  the  po- 
litical. It  must  be  equally  bound  when  the  contest  is 
over.  The  President  recognizes  the  Governor  under  the 
charter  as  the  executive  power  of  the  state.  Xo  court 
of  the  United  States  with  knowledge  of  this  decision 
(110) 


Ch.   4]  POWERS  OF  ADMINISTRATION.  k    39 

could  have  been  justified  iu  recognizing  the  opposition 
party  as  the  lawful  Governor  or  not  treated  as  wrong- 
doers or  insurgents  the  officers  of  that  present  govern- 
ment. The  court  has  been  urged  to  express  an  opinion 
upon  political  rights  and  political  questions.  We  de- 
cline doing  so.  This  tribunal  should  be  the  last  to  over- 
step the  boundaries  that  limit  its  jurisdiction.  Whether 
a  new  government  has  been  established  or  not  is  a  ques- 
tion to  be  settled  by  the  political  power;  and  when  that 
power  has  decided  the  courts  are  bound  to  take  notice 
of  the  decision  and  to  follow  it. 

In  rough  outline  these  cases  cover  the  diplomatic  field 
of  political  powers.  The  function  of  the  executive  de- 
partment in  determination  of  these  matters  is  obviously 
of  consequence ;  for  these  are  high  matters  of  state  upon 
which  great  issues  may  depend.  The  recognition  of 
the  independence  of  an  insurgent  community  may  mean 
war  for  the  state  which  presumes  to  recognize  it.  Even 
that  lesser  move,  the  recognition  of  belligerency,  may 
be  deemed  an  unfriendly  act.  The  very  statement  of 
this  situation  shows  that  the  questions  involved  are  all 
political.  The  very  description  of  political  power  shows 
that  exercise  of  such  functions  must  in  any  government 
be  largely  held  by  the  executive  department,  as  that 
branch  of  the  government  which  must  be  so  constituted 
to  act  with  rapidity  and  to  act  with  effect.  It  is  for  this 
that  an  executive  department  exists.  Political  power 
must  in  its  nature  be  free  from  exterior  influences  so 
far  as  that  may  be  permitted.  There  must  be  free  ac- 
tivity  for  the  conduct  of  the  most  consequential  mat- 
ters in  a  state,  its  political  concerns.22 

--  Interiob. — Doe  d.  Clark  v.  Braden,  16  How.  657;  United  States  v. 

(Ill) 


§   30  ADMINISTRATIVE    LAW.  [Ch     4 

§  30.     Governmental  powers. 

It  will  be  well  to  state  for  discussion  a  few  definite 
examples  of  the  sort  of  thing  that  governmental  power 
is.  The  Emulous,  1  Gall.  563  (1813),  will  serve  as  a 
first  case.  This  was  a  prize  allegation,  filed  by  the 
United  States  against  five  hundred  and  fifty  tons  of 
pine  timber,  part  of  the  cargo  of  the  ship  Emulous, 
which  was  seized  as  property  of  the  British  enemy  in 
the  harbor  of  New  Bedford.  The  seizure  was  objected 
to  as  not  authorized  by  public  authority;  and  if  that 
were  so,  of  course  the  action  was  void,  since  even  in  time 
of  war  private  citizens  cannot  acquire  to  themselves  a 
title  to  hostile  property;  if  they  depredate  upon  an  en- 
emy, they  are  at  their  peril. 

Story,  J.,  stated  his  conclusion  in  this  way:  The 
question  is,  whether  Congress  have  authorized  the  seiz- 
ure of  enemy's  property  afloat  in  our  ports.  The  act 
of  June  18th,  1812,  is  in  very  general  terms,  declaring 
war  against  Great  Britain,  and  authorizing  the  Presi- 
dent to  employ  the  public  forces  to  carry  it  into  effect. 
Independent  of  such  express  authority,  I  think  that, 
as  the  Executive  of  the  nation,  he  must,  as  an  incident 
to  his  office,  have  a  right  to  employ  all  the  usual  and 
customary  means  acknowledged  in  war,  to  carry  it  into 
effect.  It  seems  to  follow  that  the  Executive  may  au- 
thorize the  capture  of  all  enemy's  property  wherever 

Lynde,  11  Wall.  643;  In  Re  Baiz,  135  U.  S.  403;  Benson  v.  United 
States,  146  U.  S.  331;  Terlinden  v.  Ames,  184  U.  S.  288;  United  States 
v.  Blaine,  139  U.  S.  306;  Tennessee,  etc.,  R.  Co.  v.  Moore,  36  Ala.  371; 
Land  Co.  v.  Routt,  17  Colo.  156;  People  v.  Bissell.  19  111.  229;  State 
v.  Warmoth,  22  La.  Ann.  1;  Magruder  v.  Swann,  25  Md.  173;  Peo- 
ple v.  Governor,  29  Mich.  320;  State  v.  Chase,  5  Oh.  St.  528;  Mauran 
v.  Smith,  8  R.  I.  192. 

(112) 


Ch.    4]  POWERS  OF  ADMINISTRATION.  g   30 

by  the  law  of  nations  it  may  be  lawfully  seized.  It 
would  be  strange  indeed,  if  the  Executive  could  not 
authorize,  or  ratify  a  capture  in  our  own  ports,  unless 
by  granting  a  commission  to  a  public  or  private  ship. 
I  am  not  bold  enough  to  interpose  a  limitation,  where 
Congress  have  not  chosen  to  make  one;  and  I  hold,  that 
by  the  act  declaring  Avar,  the  Executive  may  authorize 
all  captures  which,  by  the  modern  law  of  nations,  are 
permitted  and  approved. 

To  repeat  a  fundamental  ((inception,  when  the  admin- 
istration acts  within  its  sphere  its  action  is  govern- 
mental action.  It  is  not  possible,  therefore,  for  another 
co-ordinate  department,  as  the  judiciary,  to  enter  upon 
any  review  of  such  action.  One  of  the  leading  cases 
in  the  establishment  of  this  as  one  of  the  principal  rules 
of  administrative  law  was  Georgia  v.  Stanton,  6  Wall. 
50  (1867).  This  was  a  bill  in  equity  tiled  by  one  of 
the  states  to  enjoin  the  Secretary  of  War,  the  General 
of  the  Army,  and  one  Major  General  from  carrying  into 
execution  the  several  provisions  of  the  acts  known  as 
Reconstruction  Acts  of  2nd  and  23rd  March,  18(>7.  Both 
of  these  acts  had  been  passed  despite  the  President's 
veto,  upon  the  ground  of  their  unconstitutionality.  The 
ground  was  that  such  execution  would  annul  and  totally 
abolish  the  existing  state  government;  and  that,  unless 
enjoined,  the  executive  department  would  carry  such 
acts  into  execution. 

The  bill  was  upon  its  tiling  vehemently  opposed.  The 
Supreme  Court  upon  the  argument  dismissed  the  bill. 
A  portion  of  the  opinion  of  Mr.  Justice  Clifford  fol- 
lows: It  is  urged  that  the  matters  involved  and  pre- 
sented   for  adjudication  are  political   and   not  judicial, 

(113) 

Adm.  Law — 8. 


§   30  ADMINISTRATIVE    LAW.  [Ch.    4 

and  therefore  not  subject  to  judicial  cognizance.  This 
distinction  results  from  the  organization  of  the  govern- 
ment in  which  are  three  great  departments,  executive, 
legislative  and  judicial;  and  from  the  assignment  and 
limitation  of  the  powers  of  each  by  the  Constitution. 
The  judicial  power  is  vested  in  one  Supreme  Court  and 
in  such  inferior  courts  as  Congress  may  deign  to  es- 
tablish. The  political  power  of  the  government  is  in 
the  other  two  departments.  The  distinction  between 
judicial  and  political  power  is  generally  acknowledged 
in  the  jurisprudence  both  of  England  and  this  country. 
The  propriety  of  such  interposition  by  the  courts  may 
well  be  questioned.  It  savors  too  much  of  the  exercise 
of  political  power  to  be  within  the  province  of  the  ju- 
dicial department.  We  do  not  claim  for  this  court  the 
exercise  of  jurisdiction  upon  any  matter  properly  fall- 
ing under  the  denomination  of  political  power  that  be- 
longs to  another  branch  of  the  government.  The  pro- 
tection and  enforcement  of  many  rights  secured  by 
treaties  most  certainly  do  not  belong  to  the  judiciary. 
The  prayers  for  relief  call  for  the  judgment  of  the  court 
upon  political  questions  and  involve  rights  of  political 
character.  The  substance  of  this  opinion,  it  is  clear, 
is  that  governmental  matters  should  not  be  reviewed  by 
the  courts.-'' 

23  Govern mentai  Powers. — Musgrave  v.  Pulido.  5  App.  Cas.  102; 
Mississippi  v.  Johnson.  4  Wall.  500;  Georgia  v.  Stanton,  6  Wall.  77; 
Keim  v.  United  States,  177  U.  S.  292;  Tennessee,  etc..  R.  R.  v. 
Moore,  36  Ala.  371;  Hawkins  v.  Governor,  1  Ark.  570;  Ex  parte 
Shrader,  33  Cal.  279;  Land  Co.  v.  Routt.  17  Colo.  156;  State  v. 
Staub,  61  Conn.  568:  McWhorter  v.  Pensacola  R.  R..  24  Fla.  417; 
People  v.  Secretary  of  State,  58  111.  90;  Hovey  v.  State,  127  Ind. 
588;  Martin  v.  Ingham,  38  Kan.  641;  State  v.  Fisher,  26  La. 
Ann.  537;    Worthington  v.  Scribner.  109  Mass.  487;   People  v.  Hurl- 

(114) 


Qfo     4]  POWERS  OF  ADMINISTRATION.  §31 

§  31.     Domestic. 

A  further  case  in  this  doctrine  is  Martin  v.  Mott,  12 
Wheat.  19  (1827).  For  in  this  case  the  very  basis  of 
executive  functions  is  exposed.  In  March  of  1814  the 
President  called  upon  the  militia  of  New  York  at  a 
time  of  imminent  danger  of  invasion.  Mott  refused 
to  respond  to  the  orders :  he  was  at  once  tried  and  fined; 
latci-  his  goods  were  taken  to  satisfy  the  sentence;  and 
now  he  seeks  to  recover  in  replevin.  The  justification 
of  the  officers  who  have  taken  the  goods  is  public  author- 
ity, and  in  particular,  the  orders  issuing  from  the  Presi- 
dent. Mott  claimed  that  the  officer  must  show  further 
justification  in  fact,  as  the  event  proved. 

Mr.  Justice  Story  again  delivered  the  opinion:  By 
whom  is  the  exigency  to  be  judged  of  and  decided?  Is 
the  President  the  sole  and  exclusive  judge  whether  the 
exigency  has  arisen,  or  is  it  to  be  considered  as  an  open 
question  upon  which  every  officer  to  whom  the  orders 
of  the  President  are  addressed  may  decide  for  him- 
self, and  equally  open  to  be  contested  by  every  militia 
man  who  shall  refuse  to  obey  the  orders  of  the  Presi- 
dent? We  are  all  of  opinion  that  the  authority  to 
decide  whether  the  exigency  has  arisen  belongs  exclu- 
sively to  the  President,  and  that  his  decision  is  con- 
clusive upon  all  other  persons.  The  power  itself  is  to 
he  exercised  upon  sudden  emergencies,  upon  great  ques- 
tions of  state  and  under  circumstances  which  may  be 
vital  to  the  existence  of  the  Union.  These  powers  must 
be  so  construed  as  to  the  modes  of  their  exercise  as  not 

but,  24  Mich.  63;  Vicksburg  R.  R.  v.  Lowry,  61  Miss.  102;  People  v. 
Parker,  3  Neb.  409;  Mauran  v.  Smith,  8  R.  I.  192;  Commonwealth 
v.  Henry,  49  Pa.  St.  530;  Slack  v.  Jacob,  8  W.  Va.  612. 

(115) 


g   31  ADMINISTRATIVE    LAW.  [Ch.   4 

to  defeat  the  great  end  in  view.  It  is  not  necessary  in 
such  a  case  that  the  particular  exigency  actually  ex- 
isted. It  is  sufficient  that  the  President  has  actually 
determined  it;  and  all  other  persons  are  bound  by  his 
decision. 

A  further  illustration  of  the  position  of  the  execu- 
tive in  his  executive  powers  is  seen  in  Hartranft's  Ap- 
peal, 85  Pa.  St.  433  (1877).  These  proceedings  fol- 
lowed upon  the  labor  disturbances  of  1877  in  Pennsyl- 
vania. Portions  of  the  National  Guard  of  the  state 
were  sent  by  the  Governor  under  the  charge  of  their 
officers  to  protect  the  railroads  in  moving  their  trains. 
A  collision  took  place  between  the  soldiers  and  the 
strikers  and  during  the  progress  of  the  riot  a  number 
on  both  sides  were  killed  or  wounded.  The  grand  jury 
later  took  the  matter  up  and  in  the  course  of  the  in- 
vestigation subpoenas  were  issued  to  the  Governor  and 
to  the  high  militia  officers,  all  of  whom  refused  to  attend. 
The  present  motion  was  for  the  award  of  compulsory 
process  to  compel  them  to  testify.  The  Attorney-Gen- 
eral filed  a  paper  setting  forth  that  all  the  persons  meu 
tioned  had  acted  throughout  in  their  official  character. 

Whether  that  stopped  such  an  inquiry  as  this  is  the 
question;  Mr.  Justice  Gordon  ruled  that  it  did:  In 
order  to  simplify  matters  we  may  treat  this  case  just 
as  though  the  process  first  and  last  were  against  the 
Governor  alone;  for  if  he  is  exempt  from  attachment 
because  of  this  privilege,  his  immunity  in  such  a  mat- 
ter protects  his  subordinates  and  agents.  The  general 
principle  is  that  when  the  law  vests  any  person  with 
the  power  to  do  an  act,  at  the  same  time  constituting 
a  judge  of  when  the  act  may  be  done,  and  contemplating 
(116) 


Ch.    4]  POWERS  OF  ADMINISTRATION.  ^   31 

the  employment  of  agents  through  whom  the  act  is  to 
be  accomplished,  such  person  is  clothed  with  discre- 
tionary powers  and  quoad  hoc  is  his  judge.  It  follows 
that  if  the  Governor  as  supreme  executive  and  as  Com- 
mander-in-Chief of  the  army  of  the  Commonwealth  is 
charged  with  the  duty  of  suppressing  domestic  insur- 
rections, he  must  be  the  judge  of  the  necessity  requir- 
ing the  exercise  of  the  powers  with  which  he  is  clothed, 
and  his  subordinates  who  are  employed  to  render  these 
powers  efficient  and  to  produce  the  legitimate  results 
of  their  exercise,  can  be  accountable  to  none  but  hi  in. 
We  had  better  at  the  outset  recognize  the  fact  that  the 
executive  department  is  a  co-ordinate  branch  of  the 
government,  with  power  to  judge  what  should  or  should 
not  be  done  within  its  own  department,  and  what  of 
its  doings  or  communications  should  or  should  not  be 
kept  secret ;  and  that  with  it  in  the  exercise  of  these 
constitutional  powers,  the  courts  have  no  more  right 
to  interfere  than  has  the  executive,  under  like  condi- 
tions, to  interfere  with  the  courts.  This  is  an  extreme 
opinion,  it  may  be  admitted ;  but  upon  the  whole  it  does 
not  overstate  the  case  much. 

The  scope  of  this  opinion  is  to  be  remarked.  This  is 
one  of  the  cases  rare  by  comparison  where  the  place  of 
executive  power  is  exposed.  It  is  not  enough  to  say 
that  in  the  exercise  of  executive  powers  the  chief  of 
the  department  has  discretion  within  limits  and  that 
there  can  be  no  control  of  the  exercise  of  that  discre- 
tion. It  is  more  than  that;  it  is  not  too  much  to  say 
that  in  the  exercise  of  executive  powers  the  head  of 
the  state  has  independence;  and  that  therefore  concern- 
ing the  exercise  of  that  power  there  can  be  no  inquiry. 

(117) 


£    32  ADMINISTRATIVE    LAW.  [£h.    4 

Whether  the  occasion  was  proper  for  the  action  cannot 
be  judged  by  the  judiciary;  for  the  determination  of 
the  occasion  was  entirely  without  the  scope  of  the  ju- 
diciary, since  it  was  within  the  sphere  of  a  co-ordinate 
department.  This  irresponsibility  is  characteristic  of 
executive  power.24 

§  32.     Colonial. 

At  the  time  of  the  present  writing  the  American  peo- 
ple have  the  highest  interest  in  one  special  phase  of 
government  by  the  executive — colonial  administration. 
A  case  much  relied  upon  in  current  discussion  is  Cross 
v.  Harrison,  16  How.  164  (1853).  In  1816  in  the  war 
with  Mexico  the  United  Stales  troops  took  military  pos- 
session of  all  of  Upper  California,  including  the  port 
of  San  Francisco.  Early  in  1847  the  President,  in  his 
capacity  of  Commander-in-Chief  of  the  army  and  navy, 
authorized  the  military  and  naval  commanders  of  the 
United  States  forces  in  California,  in  the  exercise  of 
the  belligerent  rights  of  a  conqueror,  to  form  a  civil 
and  military  government  for  the  conquered  territory, 
with  powers  therein  to  impose  duties  on  imports  and 
tonnage.  A  war  tariff  was  accordingly  promulgated 
and  the  duties  under  it  were  levied,  until  official  notice 
was  received  by  the  Military  Governor  that  a  treaty  of 
peace  had  been  made  with  Mexico  by  which  Upper  Cali- 
fornia was  ceded  to  the  United  States.  Thereupon  the 
Governor  directed  that  the  duties  levied  should  be  such 

2i  Domestic— Faith  v.  Pearson,  6  Taunt.  439;  Grisar  v.  McDowell, 
6  Wall.  371;  United  States  v.  Blaine,  139  U.  S.  306;  The  Orono,  1 
Gall.  137;  Benton  v.  Taylor,  46  Ala.  388;  State  v.  Gleason,  12  Fla. 
190;  Parker  v.  State,  135  Ind.  534;  State  v.  Cahen,  28  La.  Ann.  645; 
Tyler  v.  Pomeroy.  8  Allen  480;  Guthrie  v.  Hall,  1  Okl.  454:  Com- 
monwealth v.  Henry.  49  Pa.  St.  530;  Slack  v.  Jacob.  8  W.  Va.  612. 

(lis) 


Ch.    4]  POWERS  OF  ADMINISTRATION.  g    32 

as  were  paid  at  other  ports  of  entry  according  to  the 
existing  statutes. 

The  issue  in  the  ease  was  therefore  as  to  the  validity 
of  these  collections.  The  opinion  was  elaborate — one 
of  the  best  of  Mr.  Justice  Wayne:  Until  California 
had  been  ceded  in  fact  to  the  United  States  it  was  a 
conquered  territory,  within  which  the  United  States 
were  exercising  belligerent  rights;  and  whatever  sums 
were  received  for  duties  upon  foreign  merchandises,  were 
paid  under  them  thus.  But  after  the  ratification  of 
the  treaty  California  became  a  part  of  the  United  States. 
or  a  ceded,  conquered  territory.  Our  inquiry  here  is 
to  be  whether  after  the  cession  the  duties  could  lie 
collected.  The  existing  government  was  continued  by 
the  definite  instructions  received  from  Washington  in 
reference  to  the  existing  state  of  things  in  California. 
It  was  the  government  when  the  territory  was  ceded 
as  a.  conquest ;  and  it  did  not  cease  as  a  necessary  conse- 
quence of  the  restoration  of  peace.  ,  Colonel  Mason  was 
fortunate  in  having  his  determination  to  continue  tin- 
existing  government  sustained  by  the  President  of  the 
United  States  and  the  Secretaries  of  his  cabinet.  It 
was  said  that  the  duties  were  illegally  exacted  because 
the  laws  of  a  ceded  territory  remain  unchanged  until 
the  neAV  sovereignty  has  changed  them,  and  that  this 
Congress  had  not  done.  But  the  acts  of  the  executive 
are  acts  of  the  sovereign. 

The  questions  in  this  last  case  in  1857  came  up  for 
discussion  again  in  1001,  under  circumstances  almosl 
exactly  similar.  This  was  an  action  begun  by  the  firm 
of  Dooley,  Smith  &  Co.,  engaged  in  trade  between  Porto 
Rico  and   New  York  to  recover  certain  duties  exacted 

(119) 


I   32  ADMINISTRATIVE    LAW.  [Ch.    4 

and  paid  under  protest  at  the  Port  of  San  Juan,  upon 
several  consignments  of  merchandise  imported  into 
Porto  Rico  from  New  York  between  July  28th,  1898, 
and  May  1st,  1900,  under  the  following  schedules:  from 
July  26,  1898,  to  August  19,  1898,  under  the  proclama- 
tion of  General  Miles,  directing  the  exaction  of  the  for- 
mer Spanish  and  Porto  Rican  duties;  from  August  19, 
1898,  to  May  1,  1900,  under  the  customs  tariffs  for  Porto 
Rico,  proclaimed  by  order  of  the  President.  It  further 
appeared  that  part  of  the  duties  were  collected  thus 
before  the  exchange  of  the  ratifications  of  the  treaty  of 
cession  on  April  11,  1899,  and  in  part  afterwards.  Thus 
by  the  facts  the  question  in  this  case  was  as  to  the  va- 
lidity of  these  collections — Dooley  v.  United  States,  182 
U.  S.  222  (1901). 

Mr.  Justice  Brown  delivered  the  opinion,  which,  be- 
cause of  the  contrariety  of  view  in  the  court,  can  hardly 
be  called  more  than  his  own:  There  can  be  no  doubt 
with  respect  to  the  exaction  of  duties  under  the  war 
power,  prior  to  the  ratification  of  the  treaty  of  peace. 
Upon  the  occupation  of  the  country  by  the  military 
forces  of  the  United  States,  the  authority  of  the  Spanish 
government  was  superseded,  but  the  necessity  for  a 
revenue  did  not  cease.  The  government  must  be  carried 
on,  and  there  was  no  one  left  to  administer  its  func- 
tions but  the  military  forces  of  the  United  States.  The 
most  natural  method  was  by  the  continuation  of  ex- 
isting duties.  In  adopting  this  method  General  Miles 
was  fully  justified  by  the  laws  of  war.  Different  consid- 
erations apply  with  respect  to  duties  levied  after  the 
ratification  of  the  treaty  and  the  cession  to  the  United 
States.  We  have  no  doubt,  however,  from  the  necessi 
(120) 


Ch.    4]  POWERS  OF  ADMINISTRATION.  s,    32 

ties  of  the  case,  the  right  to  administer  the  government 
of  Porto  Rico,  continued  after  the  ratification  of  the 
treaty  and  until  further  action  by  Congress.  At  the 
same  time,  while  the  right  to  administer  the  govern- 
ment continued,  the  conclusion  of  the  treaty  of  peace 
and  the  cession  of  the  island  to  the  United  States  were 
not  without  their  significance.  The  spirit  as  well  as  the 
letter  of  tariff  laws  admit  of  duties  being  levied  by  a 
military  commander  only  upon  the  importations  from 
foreign  countries,  and  while  his  power  is  necessarily 
despotic,  this  must  be  understood  rather  in  an  admin- 
istrative than  in  a  legislative  sense.  In  our  opinion 
the  authority  of  the  President  as  Commander-in-Chief 
to  exact  duties  upon  imports  from  the  United  States. 
erased  from  the  ratification  of  the  treaty  of  peace. 

These  decisions  represent  about  all  the  law  that  we 
have  in  our  decisions  upon  this  pressing  problem  of 
colonial  administration;  and  these  decisions  were  de- 
cided with  reference  to  a  transition  from  military  occu- 
pation to  civil  government.  Within  the  next  few  years 
we  are  certain  to  have  many  questions  determined  which 
are  at  present  unsettled.  The  greatest  constitutional 
problem  of  all  in  this  matter  is  not  decided  beyond  ques- 
tion by  the  Supreme  Court  of  the  United  States.  That 
is  whether  the  guarantees  of  civil  rights  contained  in 
tin-  constitution  apply  in  the  government  of  colonies.  A 
fair  argument  may  lie  based  upon  various  decisions  as 
to  the  territories  to  the  effect  that  these  limitations  in 
the  constitution  apply  only  to  government  by  the  United 
States  within  the  United  Stales  themselves.  Bui  wheth- 
er th is  is  so  cannot  be  known  until  this  question  is  ad- 
judicate!] once  for  all   by  some  new  decision  of  the  Su- 

(121) 


§   32  •  ADMINISTRATIVE    LAW.  .,'  [Ch.    4 

preme  Court  of  the  United  States.  And  until  such  a 
decision  it  cannot  be  certain  that  government  of  the 
colonies  by  the  administration  can  be  carried  out.  For 
example,  if  in  every  civil  dispute  there  must  be  jury 
trial,  government  of  these  foreign  peoples  will  be  ham- 
pered; and  if  in  every  criminal  proceeding  there  must 
be  grand  jury  and  petit  jury,  no  effective  police  of  these 
regions  will  be  possible. 

However,  there  should  be  no  hasty  action  on  the  part 
of  ('ongress  in  determining  the  form  of  our  colonial 
government.  If  Congress  has  full  power  in  the  matter, 
the  more  cautious  should  lie  its  exercise.  And  especially 
during  this,  which  is  called  by  the  Hawaiian  Court  the 
transition  stage,  the  firm  government  of  the  executive 
free  from  much  interference  by  Congress  is  needed.  It 
is  only  after  some  years  of  experience  and  after  much 
discussion  that  we  should  determine  our  colonial  policy 
and  frame  our  colonial  governments. 

The  political  experience  upon  the  subject  has  devel- 
oped various  types  of  colonial  administration.  If  the 
wrong  system  is  applied  to  the  wrong  situation,  dis- 
aster follows.  Note  first  that  a  colony  may  have 
a  comparatively  large  number  of  inhabitants  of  the 
same  race;  or  the  colony  may  have  inhabitants  of 
an  alien  and  inferior  race.  Again  note  that  there 
are  three  principal  forms  of  colonial  administration: 
an  almost  complete  independence,  both  legislative  and 
administrative  authorities  being  chosen  locally;  an  al- 
most complete  dependence,  both  legislative  and  admin- 
istrative authorities  being  appointed  by  the  home  state; 
a  compromise  between  these  two,  tin1  legislature  being 
elected  locally,  the  administrative  authorities  being  ap- 
pointed by  the  home  state. 
(122) 


Ch.   4]  POWERS  OF  ADMINISTRATION.  ^    33 

Let  us  sec  for  a  moment  what  has  been  the  experience 
with  these  forms  of  colonial  administration.  Where  the 
inhabitants  are  of  the  same  race,  a  large  measure  of 
independence  is  given.  Where  the  inhabitants  are  of  an 
alien  and  inferior  race,  all  powers  are  reserved  to  the 
governors  and  their  councils  appointed  directly  or  in- 
directly by  the  home  state.  In  some  fewer  instances  there 
has  been  experiment  with  the  combined  type;  but  sel- 
dom with  success,  except  in  small  units.  Here  have  been 
the  most  conspicuous  failures  upon  the  whole. 

If,  then,  so  much  depends  upon  applying  the  right 
type  of  colonial  administration  to  the  proper  situation, 
let  us  face  our  new  colonial  problem  at  the  outset  square- 
ly. For  there  is  no  such  thing  practical  in  colonial  gov- 
ernment as  any  one  system  of  colonial  administration. 
Each  of  our  colonial  problems  must  be  met  separately ; 
and  for  each  we  must  find  our  own  solution.  There  are 
three  such  colonial  problems :  the  Hawaiian  Islands,  the 
Philippine  Islands,  and  Porto  Rico. 

The  problem  of  the  government  of  the  Hawaiian  Is- 
lands is  a  problem  no  longer.  It  is  solved;  and  proba- 
bly solved  finally  because  it  seems  to  be  solved  rightly. 
In  Hawaii  we  have  a  compact  American  class  large 
enough  and  strong  enough  in  the  end  to  dictate  and 
maintain  American  government  of  the  islands.  This 
they  had  done  before  they  came  to  us.  They  came  to 
us  a  self-governing  nation,  and  they  were  rightly  in- 
corporated into  our  American  Empire  as  a  self-govern- 
ing unit — as  of  the  first  type  of  colonial  government 
mentioned,  rather  than  the  third.  Indeed,  all  that  was 
done  was  to  apply  to  the  Hawaiian  Islands  the  long 
established  and  well  developed  type  of  government  which 

(123) 


§   32  ADMINISTRATIVE    LAW.  [Ch.   4 

we  had  for  a  hundred  years  used  in  governing  our  terri- 
tories. And  in  that  type,  although  the  administrative 
head,  the  Governor,  is  appointed  from  Washington,  yet 
as  a  matter  of  fact,  when  applied  to  an  American  self- 
governing  population,  the  control  of  Washington  is  very 
seldom  felt,  and  so  Hawaii  cannot  longer  be  cited  as  a 
colonial  problem.  Indeed,  it  is  a  proof  of  the  capacity 
of  the  American  in  colonial  administration. 

In  the  Philippine  Islands  a  proper  beginning  is  being 
made.  We  are  applying  the  proper  type  of  colonial 
administration,  the  second  type  of  direct  administrative 
government  from  Washington,  to  the  proper  situation, 
alien  and  inferior  inhabitants.  The  present  civil  govern- 
ment, executive  for  the  most  part,  is  well  conceived.  The 
instructions  that  come  from  Washington  arc  among  the 
ablest  of  American  state  papers.  It  would  simply  be 
an  example  of  weak  political  sentimentality  to  give  the 
Filipinos  independence  with  nominal  suzerainty  of  the 
United  States.  That  a  Filipino  legislature  should  be 
set  up  against  the  American  governor  and  his  admin- 
istration is  not  to  be  thought  of,  either.  In  governing 
the  Philippines  thus  by  administrative  government, 
we  are  wise;  we  follow  the  ascertained  result  of  polit- 
ical experience  in  governing  tropical  colonies  peopled 
by  an  alien  and  inferior  race. 

But  for  Porto  Eico  the  problem  is  different.  We  have 
an  alien,  but  not  inferior  race  to  deal  with.  The  plan 
begun,  indeed,  in  the  late  legislation  of  Congress,  is  that 
of  an  appointed  governor  and  an  elected  legislature. 
That  is  dangerous;  it  does  not  begin  auspiciously.  Al- 
ready in  the  elections  a  strong  anti-American  party  is 
appearing.  It  is  to  be  feared  that  they  will  be  led  in 
(124) 


Ch.    4]  POWERS  OF  ADMINISTRATION.  g   33 

the  Legislature  by  leaders  who  must  make  their  political 
capital  from  criticisms  of  an  administration  which  they 
themselves  can  never  direct.  These  consequences  will 
follow  unless  the  fundamental  principle  is  remembered: 
that  the  way  to  govern  colonies — is  to  govern  them. 

Indeed,  there  is  for  alien  colonies,  as  it  seems,  but 
one  proper  form  of  colonial  government — complete  ad- 
ministrative government:  a  governor  with  a  properly 
organized  administration,  advised  by  proper  adminis- 
trative councils  with  legislative  powers;  all  appointed 
directly  or  indirectly  from  Washington.  For  if  the 
history  of  colonial  administration  teaches  anything,  it 
teaches  the  inherent  dangers  of  the  combined  form  of 
colonial  administration.  Doubtless  it  will  he  found 
expedient  that  the  native  inhabitants  should  be  given 
all  places  in  this  administration  and  in  these  adminis- 
trative councils  possible.  To  that  extent  they  should 
have  a  part  in  their  own  government.  Such  a  form  of 
government  is  secure.  But  this  idea  of  pitting  an  alien 
legislature  against  an  American  administration  is  divid- 
ing the  house  against  itself.-5 

§  33.     Conclusion. 

Thus  far  in  this  discussion  the  executive  department 
has  been  found  in  operation  within  the  scope  of  its 
functions;  many  of  the  cases  may  have  seemed  extreme, 
but  upon  the  whole  nothing  was  found  done  that   was 

25  Colonial. — Loughborough  v.  Blake,  5  Wheat.  317 ;  American 
Ins.  Co.  v.  Canter,  1  Pet.  511;  Benner  v.  Porter,  9  How.  235; 
Scott  v.  Sandford,  19  How.  393;  Cross  v.  Harrison,  16  How.  164; 
Reynolds  v.  United  States,  98  U.  S.  145;  Thompson  v.  Utah, 
170  U.  S.  343;  De  Lima  v.  Bidweil,  182  U.  S.  1;  Armstrong  v. 
United  States,  182  U.  S.  243;  Dooley  v.  United  States,  183  U.  S. 
151;  Fourteen  Diamond  Rings,  183  U.  S.  176. 

(125) 


£    33  ADMINISTRATIVE    LAW.  [(Jft.    4 

not  within  the  power  of  the  department.  But  it  must 
have  been  obvious  that  many  of  these  cases  were 
close  to  a  line;  and  that  some  limitation  beyond  which 
the  executive  department  could  not  go  must  soon  be 
laid  down.  Else  the  private  rights  would  be  at  the  dis- 
posal (sf  the  executive;  and  the  head  of  the  department 
would  be  in  effect  dictator;  while  under  our  constitu- 
tional government,  of  course,  every  power  of  government 
by  whatever  department  exercised  must  be  subject  to 
various  limitations.  No  person  must  be  seized,  none  of 
his  property  may  be  taken,  none  of  his  rights  may  be 
abridged — without  due  process  of  law.  This  applies 
to  the  administration  in  the  performance  of  executive 
functions.  The  President  in  his  action  as  chief  execu- 
tive is  not  like  the  Czar  in  his  action  as  chief  executive; 
in  every  phase  of  our  government  the  distinction  be- 
tween a  constitutional  system  and  an  autocratic  system 
must  be  observed. 

An  instance  in  point  is  seen  in  an  opinion  of  the 
Attorney-General  entitled  The  Diamonds  of  the  Princess 
of  Orange,  2  Opin.  452  (1831).  It  was  represented  to 
the  executive  department  by  the  diplomatic  representa- 
tive of  the  Kingdom  of  Holland  that  a  criminal  had  just 
entered  the  United  States,  a  fugitive  from  Holland 
with  diamonds  in  his  possession  stolen  from  the  Princess 
of  Orange.  The  request  was  that  the  diamonds  be 
seized  and  returned  and  the  man  arrested  and  surren- 
dered. 

The  opinion  of  Taney  reads  as  follows:  I  have 
the  honor  to  state:  1st.  That  in  my  opinion,  the  Presi- 
dent of  the  United  States  has  not  the  power  to  order 
the  delivery  of  the  diamonds  and  precious  stones  referred 
(126) 


Ch.   4]  POWERS  OF  ADMINISTRATION.  K  33 

to  in  the  note  of  the  Chevalier  Huygens.  The  courts  of 
justice  alone  have  the  power  to  decide  upon  the  owner- 
ship of  the  property;  and  the  court,  upon  proper  pro- 
ceedings, will  award  the  possession  to  the  party  who 
may  appear  to  be  entitled.  2d.  As  there  is  no  stipulation 
by  treaty  between  the  two  governments  for  the  mutual 
delivery  of  fugitives  from  justice,  I  think  the  President 
would  not  be  justified  in  directing  the  surrender  of  the 
person  upon  whom  a  part  of  the  stolen  articles  may  have 
been  found,  in  order  that  he  may  be  brought  to  trial 
in  the  country  where  he  is  supposed  to  have  committed 
the  robbery. 

This  opinion  at  bottom  involves  the  proposition  thai 
there  is  no  international  common  law  on  the  subject 
of  extradition;  therefore  this  consequence:  that  if  the 
President  should  seize  to  surrender  he  would  act  with- 
out law.  Exactly;  this  is  now  the  view  of  the  Supreme 
Court,  In  many  governments  the  executive  would  have 
some  power  to  act  under,  in  answer  to  such  requests  of 
foreign  governments,  if  it  seemed  fit,  not  in  ours  with 
the  constitution  in  the  way. 

A  most  usual  executive  function  is  the  power  of 
pardon.  As  would  be  expected,  the  cases  that  involve 
the  power  of  pardon  grant  to  the  executive  entire  in- 
dependence in  the  exercise  of  that  power.  It  is  never 
possible  to  inquire  into  the  reasons  upon  which  the 
pardon  was  granted ;  since,  the  grant  of  the  pardon 
was  wholly  within  the  powers  of  the  executive.  This 
does  not  quite  dispose  of  the  whole  question.  The  subject 
of  pardons  is  divisible  by  two  intersecting  lines  of  cleav 
age;  one  divides  fines  or  forfeitures  due  to  an  individual 
from  those  due  to  a  government:  the  other  divides  con 

(127) 


§   33  ADMINISTRATIVE    LAW.  [Ch.   4 

tempt  proceedings  from  other  proceedings.  Thus  there 
are  four  possible  cases :  Criminal  convictions  with  a 
fine  payable  to  the  United  States ;  criminal  convictions 
with  a  fine  payable  to  an  individual ;  contempt  commit- 
ments to  vindicate  the  dignity  of  a  court;  and  contempt 
proceedings  in  behalf  of  an  individual.  Under  the  con- 
stitutions the  chief  executive  has  usually  the  power  to 
grant  pardons  and  reprieves;  and  the  lesser  power  to 
remit  fines  and  forfeiture,  if  not  expressed,  will  be  im- 
plied. 

This  general  analysis  suggests  the  inquiry  whether 
the  power  of  pardon  can  be  exercised  in  all  cases  con- 
sistently with  our  constitutional  separation  of  powers. 
In  (3)  and  (4)  above,  for  instance,  would  not  the  ex- 
ecutive by  the  pardon  of  a  contempt  interfere  with  the 
functions  of  the  judiciary?  This  query  was  raised  in  ;i 
recent  case,  In  lie  Nevitt,  117  Fed.  448  (1902).  Two 
county  judges  were  ordered  by  mandamus  from  a  cir- 
cuit court  to  levy  a  tax  for  the  payment  of  a  judgment 
recovered  against  the  county.  The  judges  refused  and 
were  imprisoned  for  contempt.  Thereupon,  they  filed 
a  petition  for  habeas  corpus;  in  the  course  of  this  pro- 
ceeding they  asked  for  a  stay  of  proceedings  in  order  to 
allow  a  petition  to  the  President  for  a  pardon.  This 
application  Sanborn,  the  Circuit  Judge,  refused;  hold- 
ing that  the  commitment  was  not  in  execution  of  the 
criminal  laws  of  the  nation,  but  was  to  secure  a  suitor 
in  his  rights  in  the  course  of  a  judicial  proceeding.  On 
that  point  he  said  in  part :  That  in  such  a  pardon  the 
executive  would  go  beyond  his  constitutional  powers 
into  matters  confided  in  another  department.  In  other 
words,  has  the  executive  the  power,  if  he  chooses  to  ex- 
ercise it,  of  drawing  to  himself  all  the  real  judicial  power 
(128) 


Ch.    4]  POWERS  OF  ADMINISTRATION.  §   33 

of  the  nation  which  the  constitution  vested  by  express 
terms  in  the  courts  by  means  of  his  supreme  control  of 
the  inherent  and  essential  attribute  of  that  power, — the 
authority  "to  punish  for  disobedience  to  the  orders  of 
the  courts?  These  questions  seem  to  suggest  their  an- 
swers. The  judicial  power  is  granted  to  the  courts  in 
its  entirety  by  means  of  the  constitution,  including  the 
inherent  and  indispensable  attribute  of  that  power,  the 
authority  to  punish  for  disobedience  of  their  orders  to 
the  Federal  Courts,  free  from  the  control  or  supervision 
of  the  executive  department  of  the  government,  to  the 
same  extent  that  the  entire  executive  power  of  the  nation 
is  vested  in  the  President  free  from  the  supervision  or 
control  of  the  courts.  This  is  a  special  case ;  but  it  seems 
sound — another  example  of  the  constitutional  limitation 
upon  the  executive. 

(129) 
Aclm.  Law — 9. 


CHAPTER  V. 

THE  DUTIES  OF  THE  ADMINISTRATION. 
§  34.     Introduction. 


35. 

Discretionary  Duties. 

36. 

General. 

37. 

Directory. 

38. 

Ministerial  Duties. 

39. 

Specific 

40. 

Mandatory. 

41. 

Conclusion. 

§  34.     Introduction. 

The  execution  of  law  involves  a  particular  case.  The 
law  is  a  general  rule;  the  administration  of  it  is  the 
application  to  a  particular  case  of  that  general  rule. 
That  raises  the  next  question:  to  what  particular  cases 
shall  this  law  be  applied?  That  sometimes  is  a  matter 
requiring  much  judgment  on  the  part  of  the  adminis- 
tration; at  other  times  it  is  a  matter  requiring  little 
determination  by  the  administration,  which  depends 
altogether  upon  the  law  and  the  fact.  If  the  law  is 
general  the  application  requires  much  discretion;  if  the 
law  is  particular  the  application  requires  no  discretion. 
Grant  that  the  administration  must  obey  the  law;  in 
the  first  case  the  command  is  conditional,  it  is  within 
the  discretion  of  the  administration  to  determine  wheth- 
er the  conditions  exist;  in  the  second  case,  since  the 
command  is  absolute,  the  administration  must  obey 
without  assertion.  These  distinctions  are  put  forward 
at  this  stage  as  a  working  hypothesis. 
(130) 


Ch.   5]  DUTIES  OF  THE  ADMINISTRATION.  ^    34 

The  leading  case  in  any  discussion  of  this  hypothesis 
must  always  be  Marbury  v.  Madison,  1  Cranch,  137 
( 1803  j .  This  was  a  motion  for  mandamus  against  Madi- 
son, the  Secretary  of  State,  to  compel  him  to  deliver  to 
Marbury  his  commission  as  -Justice  of  the  Peace  for  the 
District  of  Columbia.  The  commission  had  been  made 
out  by  direction  of  Adams,  the  President  outgoing;  it 
had  then  been  executed  and  sealed  by  the  Secretary  of 
State  outgoing,  but  had  uot  been  delivered  to  the  ap- 
pointee. Under  these  circumstances  the  new  Secretary 
upon  his  accession  to  office  had  withheld  the  commission, 
acting,  it  is  believed,  under  the  instructions  of  Jefferson, 
the  President  incoming.  Thus  the  issue  was  raised  for 
the  first  time  in  the  national  government  whether  the 
judiciary  should  give  directions  to  the  executive  in 
matters  pertaining  to  that  department. 

Marshall,  the  new  Chief  Justice,  accepted  the  issue 
with  the  greatest  pleasure.  This  opinion  is  elaborate: 
In  the  order  in  which  the  court  has  viewed  this  subject 
the  following  questions  have  been  considered  and  de- 
cided :  (1)  Has  the  applicant  a  right  to  the  commission 
he  demands?  (2)  If  he  has  the  right,  and  that  right  has 
been  violated,  do  the  courts  afford  him  a  remedy?  (3) 
If  they  do  afford  him  a  remedy,  is  it  a  mandamus  issuing 
from  this  court? 

(1)  The  President  is  to  nominate,  appoinl  and  com- 
mission all  officers  of  the  United  States.  Appointment 
being  the  sole  action  of  the  President,  it  must  be  com- 
pletely evidenced  by  every  act  to  be  performed  by  him, 
and  this  act  has  to  be  done  by  the  President.  His  sig- 
nature is  the  last  act.  Some  point  of  time  must  be 
taken  when  the  power  of  the  executive  over  an  officer 

(131) 


jj   34  ADMINISTRATIVE    LAW.  [Ch.   5 

not  removable  at  will  must  cease.  That  point  of  time 
must  be  when  the  constitutional  power  of  appointment 
has  been  fully  exercised  and  the  last  act  performed. 

(2)  It  is  a  settled  and  invariable  principle  of  the 
laws  that  every  right  when  withheld  must  have  a  rem- 
edy. The  government  of  the  United  States  has  been 
emphatically  termed  a  government  of  laws,  not  of  men. 
Some  acts  are  examinable  and  others  not;  there  must, 
therefore,  be  some  rule  of  law  to  guide  the  court  in  the 
exercise  of  its  jurisdiction.  By  the  constitution  of  the 
United  States  the  President  is  vested  witli  certain  im- 
portant political  powers  in  the  exercise  of  which  he  is 
to  use  his  own  discretion  and  is  accountable  only  to  his 
country  in  his  political  character  and  to  his  own  con- 
science to  aid  him  in  the  performance  of  these  duties. 
He  is  authorized  to  appoint  certain  officers  to  act  by  his 
authority,  and  in  conformity  with  his  orders.  In  such 
cases  their  acts  are  his  acts,  and  whatever  opinion  may 
be  entertained  of  the  manner  in  which  executive  dis- 
cretion may  be  used,  still  there  exists  and  can  exist  no 
power  to  control  that  discretion.  The  subjects  are  politi- 
cal. They  respect  the  nation,  not  the  individual  rights, 
and  being  entrusted  to  the  executive  the  decision  of  the 
executive  is  conclusive.  The  heads  of  departments  are 
to  conform  precisely  to  the  will  of  the  President.  He 
is  the  mere  organ  by  whom  that  will  is  indicated.  The 
acts  of  such  an  officer,  as  an  officer,  can  never  be  exam- 
inable by  the  courts.  When  the  legislature  proceeds  to 
impose  upon  that  officer  other  duties,  when  he  is  di- 
rected peremptorily  to  perform  certain  acts,  when  the 
rights  of  individuals  are  dependent  on  the  performance 
of  these  acts,  he  is,  so  far,  the  officer  of  the  law,  amenable 
(132) 


Ch.   5]  DUTIES  OF  THE  ADMINISTRATION.  £    34 

to  the  laws  for  his  conduct.  The  conclusion  is  that 
whether  heads  of  departments  are  the  political  or  confi- 
dential agents  of  the  executive  merely  to  execute  the  will 
of  the  President,  or  whether  they  act  in  cases  in  which 
the  executive  possesses  a  constitutional  or  legal  discre- 
tion, nothing  can  be  more  perfectly  clear  than  that  their 
acts  are  only  politically  examinable.  Where  a  specific 
duty  is  assigned  by  law  and  individual  rights  depend 
upon  the  performance  of  that  duty,  it  seems  equally 
clear  that  the  individual  lias  a  remedy  in  the  laws.  It 
is,  then,  the  opinion  of  the  court  that  it  is  the  ministerial 
duty  of  Madison  to  deliver  the  commission  to  Marbury. 
(3)  It  remains  further  to  be  inquired  whether  he  is 
entitled  to  the  remedy  applied,  for  this  depends  on  (a) 
the  nature  of  the  writ;  (b)  the  power  of  the  court. 
The  writ  of  mandamus  is  to  do  a  particular  thing  therein 
specified  which  appertains  to  the  office  of  duty.  The 
intimate  political  relation  subsisting  between  President 
and  heads  of  departments  necessarily  renders  any  legal 
investigation  of  the  acts  peculiarly  irksome  as  well  as 
delicate  and  excites  some  hesitation.  The  court  cannot 
intrude  into  the  cabinet  or  meddle  with  the  prerogative 
of  the  executive.  The  province  of  the  court  is  solely  to 
decide  upon  the  rights  of  individuals,  not  to  inquire  how 
the  executive  or  executive  officers  performed  duties  in 
which  they  have  a  discretion.  Questions  in  their  nature 
political,  or  which  are  by  the  constitution  and  laws 
submitted  to  the  executive,  can  never  be  made  in  this 
court;  but  this  is  not  such  a  question.  The  office  does 
not  exempt  the  man  from  being  sued  for  a  political  act 
where  he  is  directed  by  law  to  do  a  certain  act  affecting 
the  absolute   rights  of  individuals.      The   performance 

(133) 


§   34  ADMINISTRATIVE    LAW.  [Ch.    5 

through  the  President  cannot  be  lawfully  forbidden,  and, 
therefore,  is  never  presumed  to  have  been  forbidden.  In 
such  cases  of  the  legal  doctrine  mandamus  may  issue. 
But  in  this  case  no  jurisdiction  can  be  given  this  court. 
The  authority  given  to  the  Supreme  Court  to  issue  writs 
of  mandamus  to  officers,  however,  was  not  warranted 
b\  (he  constitution,  and  the  rule  must  therefore  be  dis- 
charged. 

No  decision  in  the  law  of  public  officers  is  cited  oftener 
than  this.  It  is  useless  at  this  time  to  point  out  that  all 
that  is  said  as  to  the  obligations  of  public  officers  is 
dicta ;  at  the  present  day  every  rule  stated  in  this  opinion 
represents  the  law,  as  case  upon  case  can  be  brought  to 
demonstrate.  It  is  too  late  to  raise  the  question  whether 
a  decent  regard  for  the  independence  of  the  executive 
ought  not  to  exempt  the  high  officers  of  state  from  the 
writ  of  mandamus;  it  is  law  everywhere  in  the  United 
States  that  in  certain  of  their  functions  they  stand  no 
better  than  the  meanest  public  officer.  That  point  cer- 
tainly would  bear  an  argument  that  in  the  case  of  the 
functions  of  high  officers  of  state,  no  power  can  be  con- 
ceived of  without  some  discretion.  But  it  is  useless  to 
argue  along  that  line;  for  everywhere;  and  for  all  public 
officers  and  in  every  state  of  things  the  principal  case 
is  accepted  as  the  law. 

The  gist  of  the  case  is  in  the  distinction  taken  be- 
tween discretionary  duties  and  ministerial  duties.  When 
an  officer  is  ordered  by  law  to  do  certain  things,  but 
the  law  is  general  in  its  phraseology,  so  that  the  applica- 
tion of  it  involves  inquiry  and  decision,  then  it  is 
said  that  the  duty  is  a  discretionary  one.  Since  in  such 
an  instance  the  officer  has  the  duty  to  decide,  it  is  said 
(134) 


Ch.   5]  .DUTIES  OF  THE  ADMINISTRATION.  g    35 

with  a  correct  conception  of  the  issue  he  has  the  right 
to  decide.  And  because  this  is  so,  it  is  said  with  a  true 
appreciation  of  the  situation  this  determination  has 
been  intrusted  to  the  officer  as  in  a  co-ordinate  depart- 
ment of  the  government — the  executive — and  there- 
fore at  this  point  there  is  no  power  in  the  co-ordinate 
department — the  judiciary — to  direct  by  any  processes 
the  way  in  which  the  officer  shall  decide.  Such,  it  must 
be  admitted,  is  the  general  rule  for  discretionary  duties. 
But  as  to  ministerial  duties  it  is  said  a  difference 
exists.  When  an  officer  is  ordered  by  law  to  do  certain 
things,  and  the  application  of  that  law  requires  in  the 
particular  case  under  inquiry  that  a  certain  thing  be 
done  which  is  in  some  explicit  way  indicated,  then  it  is 
said  that  the  duty  is  a  ministerial  one.  Since  in  such 
circumstances  the  officer  has  nothing  to  decide,  it  is  said 
that  he  has  no  function  but  to  act.  If  he  fails  to  act, 
in  his  refusal  he  goes  contrary  to  the  law  that  commands 
him.  Therefore,  in  our  common  law  system  he  is  a  rec- 
reant person.  When  an  officer  refuses  to  do  that  which 
the  law  commands,  it  is  just  the  office  of  the  extraordi- 
nary writ  of  mandamus  to  force  performance.  This  is 
the  outline  of  the  distinction  taken  between  discretion- 
ary duties  and  ministerial  duties.  It  remains  to  follow 
this  rule  out  into  its  details. 

§  35.     Discretionary  duties. 

The  first  branch  of  the  rule  under  discussion  was 
that  the  judicial  courts  would  not  interfere  by  their  pro- 
cess to  direct  or  control  the  action  of  any  officer  of  the 
administration  in  any  matter  where  that  officer  had  dis- 
cretion. Unless  that  proposition  is  established,  the  ad- 
ministration can  have  no  tine  independence  in  the  en- 

(l:5:,) 


§   35  ADMINISTRATIVE    LAW.  [Ch.   5 

forcement  of  the  law,  since  it  will  be  without  any  real 
freedom  of  action.  There  is  no  decision  in  the  Supreme 
Court  which  is  square  upon  the  point  until  Decatur  v. 
Paulding,  14  Peters,  497  (1840).  On  the  3rd  of  March, 
1837,  Congress  passed  on  the  same  day  a  general  naval 
pension  law,  within  the  benefit  of  which  Mrs.  Decatur 
would  be,  and  a  special  pension  law  for  her  special  bene- 
fit. The  then  Secretary  of  the  Xavy,  Paulding,  with 
whom  the  power  to  grant  pensions  was  left,  refused  to 
pay  her  both  pensions.  Thereupon  she  applied  to  the 
proper  court  for  a  mandamus  to  order  issuance  of  both 
pensions. 

The  opinion  of  Mr.  Chief  Justice  Taney  against  Mrs. 
Decatur  was  to  this  effect :  In  general  the  official  du- 
ties  of  the  heads  of  one  of  the  executive  departments 
imposed  by  act  of  Congress  are  not  mere  ministe- 
rial duties;  the  head  of  an  executive  department  of 
the  government  in  the  administration  of  the  various 
and  important  concerns  of  his  office,  is  continually  re- 
quired to  exercise  judgment  and  discretion.  He  must 
exercise  his  judgment  in  expounding  the  laws  and  reso- 
lutions of  Congress  under  which  he  is  from  time  to  time 
required  to  act.  The  court  could  not  entertain  an 
appeal  from  the  decision  of  one  of  the  Secretaries  nor 
revise  his  judgment  in  any  case  where  the  law  authorized 
him  to  exercise  discretion  and  judgment.  There  is  this 
distinction  always  between  executive  and  ministerial 
acts.  These  resolutions  of  Congress  required  the  exer- 
cise of  judgment  and  investigation.  We  are  satisfied  that 
the  performance  of  the  ordinary  duties  of  the  executive 
department  was  never  intended  to  be  done  by  the  courts. 
Questions  which  are  given  to  the  executive  for  construc- 
tion and  execution  can  seldom  be  litigated  in  this  court. 
(136) 


Ch.   5]  DUTIES  OF  THE  ADMINISTRATION.  §   35 

An  important  case  in  this  series  of  applications  for 
mandamus  against  the  heads  of  departments  of  the 
Federal  administration  is  Carrick  v.  Lamar,  116  U.  S. 
423  (1886).  This  was  an  application  for  mandamus  to 
the  Secretary  of  Interior  to  cause  a  survey  to  be  made 
of  an  island  known  as  Arsenal  Island  in  the  Mississippi 
opposite  St.  Louis.  The  relator  was  one  Carrick,  who 
had  made  a  settlement  upon  said  island  and  wished  the 
land  surveyed  and  brought  into  the  market.  The  Com- 
missioner of  the  General  Land  Office  rejected  the  appli- 
cation, but  transmitted  the  papers  to  the  Secretary  of 
the  Interior  for  his  examination  and  instructions.  The 
immediate  predecessor  of  the  present  Secretary  con- 
curred with  the  Commissioner.  The  present  Secretary 
declined  to  review  the  decision. 

.Mr.  Justice  Field  delivered  the  opinion  of  the  court: 
It  is  settled  by  many  decisions  of  this  court  that  in  mat- 
ters which  require  judgment  and  consideration  to  be 
exercised  by  an  executive  officer  of  the  government,  or 
which  are  dependent  upon  his  discretion,  no  rule  for  a 
mandamus  to  control  his  actions  will  issue.  It  is  only 
for  ministerial  acts  in  the  performance  of  which  no  ex- 
ercise of  judgment  or  discretion  is  required  that  the  rule 
will  be  granted.  In  the  absence  of  any  positive  enact- 
ment the  Secretary  may  therefore  properly  withhold  any 
action  tending  to  encourage  a  settlement  there.  This 
consideration  alone  is  a  sufficient  answer  to  any  rule  for 
a  mandamus. 

Upon  the  distinction  of  a  discretionary  duty  from  a 
ministerial  duty  everything  turns.  Another  case  that 
confirms  this  is  Burton  v.  Fnrman,  115  X.  C.  166  (1894). 
The  plaintiff  was  a  claimant  against  a  certain  fund  held 

(137) 


§    35  ADMINISTRATIVE    LAW.  [Ch.    5 

by  the  state.  His  present  action  was  to  ascertain  and 
declare  the  amount  due  and  to  procure  a  mandamus  to 
the  Auditor  of  the  State  compelling  him  to  issue  the  war- 
rant, and  to  the  Treasurer  of  the  State  to  compel  him 
to  pay  the  same.  It  was  proved  that  under  the  exist- 
ing state  of  the  law  it  was  the  duty  of  the  State  Auditor 
to  examine  and  to  liquidate  the  claims  of  all  persons 
against  the  state,  and  the  duty  of  the  Treasurer  to  pass 
and  pay  all  claims  against  the  state. 

Upon  the  basis  of  the  independence  of  these  officers 
in  the  execution  of  their  powers,  the  opinion  of  Mr. 
Justice  Macrae  was  founded  :  The  purpose  of  this  writ 
of  mandamus  is  to  require  some  officer  to  do  some  par- 
ticular thing  which  pertains  to  his  office  or  duty.  This 
writ  will  not  be  granted  to  compel  the  performance  of 
an  act  involving  the  exercise  of  judgment  and  discre- 
tion on  the  part  of  the  officer  to  whom  its  performance. 
is  committed.  .Mandamus  will  lie  only  when  the  act  re- 
quired to  he  done  is  imposed  by  law.  is  merely  minis- 
terial. But  it  does  not  lie  where  judgment  and  discre- 
tion are  to  he  exercised;  nor  to  control  the  officer  in  the 
manner  of  conducting  the  general  duties  of  his  office. 
In  the  present  case,  therefore,  no  mandamus  will  be 
granted  to  compel  the  performance  of  action  involving 
the  exercise  of  judgment  and  discretion.26 

20  Discbetionaby  Duties. — Gidley  v.  Palmerston.  3  Brod.  &  B.  275 : 
Reg.  v.  Secretary  [1891]  2  Q.  B.  326;  Marbury  v.  Madison.  1  Cranch, 
169;  United  States  v.  Guthrie.  17  How.  2S4:  United  States  v.  Sea- 
man. 17  How.  225;  Commissioner  v.  Whiteley.  4  Wall.  522:  Gaines 
v.  Thompson,  7  Wall.  347;  Decatur  v.  Paulding.  14  Pet.  497;  Bras- 
hear  v.  Mason.  6  How.  92;  Reeside  v.  Walker,  11  How.  272:  Noble 
v.  Logging  R.  R.,  147  U.  S.  165;  United  States  v.  Lamont.  155  U.  S. 
308;  Ex  parte  Echols,  39  Ala.  698;  Hawkins  v.  Governor,  1  Ark.  570; 
People   v.   Bell,   4    Cal.    177:    State   v.    Staub.   61    Conn.    553:    United 

(138) 


Ch.   5]  DUTIES  OF  THE  ADMINISTRATION.  j    3(, 

§  36.     General. 

The  rule  in  all  of  these  cases  is  The  same;  that  rule 
is,  that  in  all  matters  that  involve  the  exercise  of  discre- 
tion by  a  public  officer,  no  processes  of  the  court  will  go 
to  control  the  exercise  of  that  discretion.  This  must 
always  lie  the  case  when  the  duty  in  question  is  one  in 
the  performance  of  which  the  officer  must  make  an  in- 
vestigation and  form  a  judgment.  In  such  a  case  the 
power  is  a  power  in  the  executive  department;  the  ju- 
dicial department  will  not.  therefore,  be  competent  to 
review  the  evidence  before  the  officer  and  revise  his 
judgment.  That  would  involve  the  subordination  of  a 
co-ordinate  department,  as  has  been  set  forth  in  a  pre- 
vious chapter;  what  may  be  done  and  what  may  not  be 
done  along  those  lines  was  there  explained  to  some  ex- 
tent: This  rule  which  invests  the  administration  with 
independence  in  its  action  within  the  scope  of  discre- 
tion given  to  it  is  then  a  fundamental  rule  based  upon 
elemental  principles. 

As  much  independence  as  this  must  be  granted  the 

States  v.  Douglass,  19  D.  C.  99;  State  v.  Drew,  17  Fla.  67;  State 
v.  Thrasher,  77  Ga.  671;  State  v.  Snodgrass,  98  Ind.  546;  People 
v.  Cullom,  100  111.  472;  Hildreth  v.  Crawford,  65  la.  339;  Dickens 
v.  Cemetery  Co..  93  Ky.  385;  State  v.  Robinson,  1  Kan.  188;  State  v. 
Warmoth,  22  La.  Ann.  1;  Davis  v.  County  Com'rs,  63  Me.  396; 
Miles  v.  Bradford,  22  Md.  170;  Deehan  v.  Johnson,  141  Mass.  23; 
People  v.  Governor,  29  Mich.  320;  State  v.  Somerset,  44  Minn. 
549;  Swan  v.  Gray.  44  Miss.  393;  State  v.  McGrath,  91  Mo.  386;  State 
v.  Babcock,  18  Neb.  221;  Sunapee  School  District  v.  Perkins,  49 
N.  H.  538;  State  v.  Perrine,  5  Vroom.  254;  People  v.  Chapin,  104  N. 
Y.  96;  Raleigh,  etc.,  R.  R.  v.  Jenkins,  68  N.  C.  499;  State  v.  Moore. 
42  Oh.  St.  103;  Carr  v.  Northern  Liberties,  35  Pa.  St.  324;  Mauran 
v.  Smith,  8  R.  I.  192;  Turnpike  Co.  v.  Brown,  8  Baxt.  490;  Chalk 
v.  Darden,  47  Tex.  438;  Richards  v.  Wheeler,  2  <Uk.  369;  McCul- 
lough  v.  Hunter,   90  Va.   699;    State  v.   Harvey,   11    Wis.   33. 

(139) 


§  36  ADMINISTRATIVE    LAW.  [Ch.    5 

administration :  that  whenever  a  matter  is  left  to  the 
determination  of  a  public  officer  his  decision  shall  be 
final.  The  opinion  in  United  States  v.  Windom,  137  U. 
S.  63(3  (1891),  is  a  discriminating  one.  The  petition 
was  for  a  writ  of  mandamus  against  Windom,  Sec- 
retary of  the  Treasury,  by  Redfield,  the  assignee  of 
one  Mitchell.  Mitchell  had  furnished  material  and  per- 
formed labor  for  the  United  States  under  a  contract ; 
when  the  work  was  done  he  presented  his  account  to 
the  proper  officer  for  adjustment  and  settlement;  the 
balance  was  found  correct;  but  it  was  also  found  that 
through  penalties  and  forfeitures  that  balance  was  lia- 
ble to  be  reduced.  The  Treasury  officers  agreed  with 
Mitchell  that  this  account  should  be  adjusted  waiving 
the  penalties  and  forfeitures,  if  he  would  consent  that 
such  indebtedness  to  sub-contractors  should  be  paid  out 
of  the  sum  so  allowed;  he  at  first  assented  and  a  draft 
was  prepared ;  then  he  refused  to  comply  with  these 
conditions. 

Mr.  Justice  Lamar  said:  The  main  assignment  of 
error  is  that  the  court  erred  in  not  deciding  that  the 
duty  of  the  Secretary  to  deliver  the  draft  was  purely 
a  ministerial  duty.  The  principles  upon  which  persons 
holding  public  office  may  be  compelled  by  writ  of  man- 
damus to  perform  duties  imposed  by  the  law  have  been 
distinctly  defined  and  strictly  adhered  to  in  a  great 
number  and  variety  of  cases  before  this  court.  That 
principle  is  that  the  writ  of  mandamus  may  issue  where 
the  duty  which  the  court  is  asked  to  enforce  is  plainly 
ministerial,  and  when  the  right  of  the  party  applying 
for  it  is  clear,  and  he  is  without  any  other  adequate 
remedy;  and  it  cannot  issue  in  a  case  where  its  effect 
(140) 


Ch.   5 J  DUTIES  OP  THE  ADMINISTRATION.  §   36 

is  to  direct  or  control  the  head  of  an  executive  depart- 
ment in  the  discharge  of  an  executive  duty  involving 
the  exercise  of  judgment  and  discretion.  In  the  extreme 
caution  with  which  this  remedy  is  applied  by  the  courts, 
there  are  cases  when  the  writ  will  not  be  issued  to  compel 
even  the  performance  of  a  purely  ministerial  act.  We 
repeat  that  upon  the  prima  facie  showing  of  the  relator 
the  case  is  clearly  one  of  ministerial  duty,  but  the  facts, 
circumstances  and  conditions  set  forth  in  the  report  of 
the  Secretary  of  the  Treasury  places  the  matter  in  an- 
other and  quite  a  different  light.  It  comes  to  this,  that 
an  officer  who  had  discretion  at. the  beginning,  had  dis- 
cretion to  the  end. 

This  same  principle,  that  whenever  there  is  discretion 
vested  in  an  officer  the  courts  are  incompetent  to  review 
his  judgment,  is  laid  down  again  and  again  in  an  unusu- 
al variety  of  cases,  involving  every  grade  of  officer  and 
every  sort  of  administration.  One  illustration  from  the 
mass  of  these  authorities  may  be  added :  People  v. 
Adam,  3  Mich.  427  (1854).  The  facts  in  that  case  were 
these:  The  relator  was  the  holder  of  a  certificate  of 
sale  of  lands  sold  at  tax  sale  for  delinquent  taxes  of 
the  year  1844.  On  July  4th,  1848,  he  presented  said 
certificate  at  the  office  of  the  Auditor-General,  and  de- 
manded a  deed  of  the  premises  described  in  the  certifi- 
cate, which  was  refused;  and  thereupon  he  made  appli- 
cation to  compel  the  conveyance  of  the  premises  to  him 
by  the  Auditor-General,  upon  surrender  of  his  certifi- 
cate. 

The  opinion  in  that  case  was  this :  By  the  Court  (  Mar- 
tin, J.)  :  The  act  of  1843,  under  which  the  premises  in 
question  were  sold,  and  the  right  of  the  relator  accrued, 

(141) 


§   36  ADMINISTRATIVE    LAW.  [fj,,    5 

authorizes  the  Auditor-General,  if  he  shall  discover  be- 
fore sale  or  conveyance  of  any  lands,  that  on  account 
of  irregular  assessments  or  for  any  other  cause  any 
of  said  lands  ought  not  to  be  sold  or  conveyed,  to  forbear 
to  sell,  or  to  withhold  a  conveyance  after  sale,  as  the 
case  may  be.  This  act  confers  upon  him  judicial  powers, 
and  into  the  proper  exercise  of  such  powers  we  cannot 
inquire  on  proceedings  of  this  nature.  A  mandamus 
will  only  be  granted  to  compel  the  performance  of  a 
ministerial  act,  nol  dependent  upon  the  exercise  of  judi- 
cial discretion,  in  the  absence  of  an  effectual  legal  rem- 
edy. Whether  the  deed  in  this  case  was  properly  with- 
held, therefore1,  is  not  a  subject  of  inquiry.  This  court 
is  clear:  it  will  not  intrude  its  processes  into  the  juris 
diction  of  another  department. 

Upon  the  whole  the  most  of  administration  is  with 
discretionary  powers;  and  that  is  a  desirable  condition 
of  things  in  government.  The  legislature  will  do  well 
to  pass  its  laws  in  general  form  and  leave  the  executive 
to  work  out  the  detail  of  its  enforcement.  The  methods 
and  forms  of  administration  are  better  decided  upon  by 
the  department  which  is  charged  with  the  enforcement 
of  the  law.  As  a  matter  of  convenience,  this  should  be 
the  solution;  since  the  executive  department  will  be 
well  versed  in  the  difficulties  that  attend  administration 
and  well  equipped  with  the  means  best  adapted  to  carry 
a  law  into  effect.  The  principle  of  the  advantage  of  spe- 
cialization in  the  conduct  of  any  undertaking  is  em- 
ployed in  the  matter  of  government  with  peculiar  suc- 
cess. It  is  clear  that  the  first  separation  between  the 
legislature  and  the  executive  is  upon  just  that  basis; 
and  if  that  is  so,  it  is  clear  that  the  division  should  be 
(142) 


Ch.   5J  DUTIES  OF  THE  ADMINISTRATION.  §   37 

observed  so  far  as  that  is  possible.  Accordingly,  it  seems 
that  it  will  always  be  a  proper  policy  for  the  legislature 
to  act  upon  to  pass  a  general  statute  upon  any  subject 
matter  and  to  leave  the  determination  of  the  applica- 
tion of  that  statute  to  the  executive.  That  is,  again, 
that  in  the  most  of  administration  there  should  be  dis- 
cretion.27 

§  37.     Directory. 

This  is  true,  that  if  a  statute  commands,  the  officer 
must  obey;  but  it  is  well  in  the  statement  of  such  a 
rule  to  define  its  terms,  since  not  all  provisions  of  law 
are  of  the  nature  of  command.  French  v.  Edwards,  13 
Wall.  50G  (1871),  is  a  case  in  point.  This  was  an  action 
for  the  possession  of  a  tract  of  land  situated  in  Cali- 
fornia. The  land  had  been  sold  in  pursuance  of  judicial 
proceedings.  The  issue  before  the  court  was  whether  the 
sheriff  in  making  the  sale  had  acted  in  accordance  witli 
law.  There  was  a  specific  provision  of  law  governing 
the  way  in  which  such  a  sale  had  been  made.  The  only 
question  was  whether  that  was  such  law  as  must  be 
obeyed.     If  not,  why  not? 

Mr.  Justice  Field  explains:     There  are  undoubtedly 

27  General. — United  States  v.  Commissioner,  5  Wall.  563;  United 
States  v.  Seaman,  17  How.  225;  Mason  v.  Rollins,  2  Biss.  99;  Ex 
parte  Selma  R.  R.,  46  Ala.  423;  McCreary  v.  Rogers,  35  Ark.  298; 
Freeman  v.  Selectmen,  34  Conn.  406;  United  States  v.  Chandler,  13 
D.  C.  527;  Towle  v.  State,  3  Fla.  202;  People  v.  Knickerbocker,  114 
111.  539;  Hightower  v.  Overhaulser,  65  la.  347;  Louisiana  College  v. 
State  Treasurer,  2  La.  394;  Weston  v.  Dane,  51  Me.  461;  Mayo  t. 
County  Com'rs,  141  Mass.  74;  Green  v.  Purnell,  12  Md.  329;  People 
v.  Auditor  General,  36  Mich.  271;  Board  of  Police  v.  Grant,  17  Miss. 
77;  State  v.  Fletcher,  39  Mo.  388;  State  v.  Scott,  18  Neb.  597; 
County  Board  v.  State  Board,  106  N.  C.  83;  Commonwealth  v.  Mc- 
Laughlin, 120  Pa.  St.  518. 

(143) 


£    37  ADMINISTRATIVE    LAW.  [Qh.    5 

many  statutory  requisitions  intended  for  the  guide  of 
officers  in  the  conduct  of  business  devolved  upon  them 
which  do  not  limit  their  power  or  render  its  exercise  in 
disregard  of  the  requisitions  ineffectual.  Such,  gener- 
ally, are  regulations  designed  to  secure  order,  system, 
and  dispatch  in  proceedings  and  by  disregard  of  which 
the  rights  of  parties  cannot  be  seriously  affected.  Pro- 
visions of  this  character  are  not  usually  regarded  as 
mandatory  unless  accompanied  by  negative  words  im- 
porting that  the  acts  required  shall  not  be  done  in  any 
other  manner  or  time  than  that  designated;  but  when 
the  negative  is  prescribed,  they  are  intended  for  the  pro- 
tection of  the  citizen  and  to  prevent  a  sacrifice  of  his 
property,  and  by  disregard  of  which  his  rights  might  be 
and  generally  would  be  injuriously  affected;  these  are 
not  directory  but  mandatory.  They  must  be  followed 
or  the  acts  done  will  be  invalid.  The  power  of  the  of- 
ficer in  all  such  cases  is  limited  by  the  manner  and  con- 
ditions prescribed  for  its  exercise. 

All  comes  back  to  the  positive  rule  that  the  officer 
must  enforce  a  law  which  commands.  A  case  which 
throws  a  light  upon  this  principle  from  another  angle 
is  United  States  v.  Randall,  1  Sprague,  546  (1853). 
This  was  an  information  for  a  penalty  filed  by  the  Dis- 
trict-Attorney for  Massachusetts  against  the  master  of 
the  brig  Nitheroy  for  not  making  a  report  of  the  arrival 
of  his  vessel  to  the  Deputy  Collector  of  the  port  of 
Holmes'  Hok  in  accordance  with  the  customs  act.  The 
excuse  of  the  master  was  that  the  collector  had  in  effect 
waived  that  provision.  Upon  that  point  indeed  there 
was  not  much  weight  placed ;  and  yet  it  was  necessary 
to  dispose  of  it.  If  this  were  a  matter  of  private  law 
(144) 


Ch.   5]  DUTIES  OF  THE  ADMINISTRATION.  §   33 

between  man  and  man  the  defense  would  be  good;  but 
this  was  a  case  of  public  law,  between  the  state  and  the 
citizen. 

This  defense  was  disposed  of  by  Sprague,  the  District 
Judge,  in  one  line,  which  is  well  worth  preservation : 
An  officer  of  the  customs  has  no  dispensing  power, 
and  cannot  excuse  a  party  from  duties  required  by  stat- 
ute. This  proposition,  again,  is  so  elementary  that  few 
cases  are  to  be  found  which  discuss  it;  and  when  found 
it  is  needless  to  recite  them.  As  an  officer  must  en- 
force the  law,  it  is  obvious  that  he  cannot  dispense  with 
its  enforcement.  But  caution,  that  all  of  the  cases  dis- 
cussed in  the  section  before  the  last  which  bear  upon 
discretionary  power  must  be  taken  into  account  in  any 
discussion  of  the  limitations  upon  the  functions  of  the 
administration,  since  in  a  discretionary  power  the  dis- 
cretion may  be  so  wide  as  to  include  the  right  to  de- 
cide what  cases  the  law  shall  be  enforced,  in  what 
cases  the  law  shall  not  be  enforced.  The  general  prin- 
ciple remains  true  that  whenever  the  law  lays  a  com- 
mand upon  an  officer  he  must  enforce  that  law.  That 
is  the  limitation  that  is  always  about  administration — 
the  law.28 

§  38.     Ministerial  duties. 

The  second  branch  of  the  general  rule  of  administra- 

28  Directory. — Postmaster  General  v.  Trigg,  11  Pet.  172;  Mason  v. 
Fearson,  9  How.  248;  Carlisle  v.  United  States,  7  App.  D.  C.  517;  Ja- 
cobs v.  Supervisors,  100  Cal.  121;  Gallup  v.  Smith,  59  Conn.  357; 
Whalin  v.  Macomb,  76  111.  49;  Abney  v.  Clark,  87  la.  727;  Kansas  R. 
R.  v.  Reynolds,  8  Kan.  628;  State  v.  Dubuclet,  28  La.  Ann.  85;  Shober 
v.  Cochrane,  53  Md.  544;  People  v.  Auditor  General,  38  Mich.  746; 
Swan  v.  Gray,  44  Miss.  393;  State  v.  Bishop,  42  Mo.  504;  Phelps  v. 
Hawley,  52  N.  Y.  23;  Springfield,  etc.,  Co.  v.  Lane  Co.,  5  Ore.  265; 
Morgan  v.  Pickard,  86  Tenn.  208;  Sights  v.  Yarnalls,  12  Grat.  292. 

(145) 
Adm.  Law — 10. 


§   38  ADMINISTRATIVE    LAW.  Ch.   5] 

live  functions  was  that  the  judicial  courts  would  in- 
terfere by  their  processes  to  direct  the  action  of  any 
officer  of  the  administration  in  any  matter  where  the 
duty  of  that  officer  was  ministerial.  An  early  instance 
of  the  exercise  of  this  power  against  a  high  public  offi- 
cer was  Kendall  v.  United  States,  12  Peters,  524  (1838  I . 
One  Stokes  brought  this  mandamus  against  Kendall, 
the  Postmaster-General,  upon  the  following  case :  When 
the  Postmaster-General  took  office  he  examined  the  con- 
tracts entered  into  by  his  predecessor,  and  directed  that 
certain  allowances  and  credits  should  be  withdrawn. 
Congress  thereupon  passed  an  act  for  relief,  by  which 
the  Solicitor  of  the  Treasury  was  authorized  and  di- 
rected to  settle  and  adjust  the  claims  of  the  relators, 
to  inquire  into  and  determine  the  equity  of  such  claims, 
to  make  relators  such  allowances  thereupon  as,  upon 
full  examination  of  the  evidence  mighl  seem  right  ac- 
cording to  the  principles  of  equity;  and  the  Post- 
master-General was  thereby  authorized  to  credit  the 
relators  with  such  amount  when  the  said  solicitor 
should  communicate  his  views  of  award  to  Postmaster- 
General.  When  all  had  been  done  thereunder  the  Post- 
master-General had  refused  to  act  altogether. 

The  opinion  in  this  case  was  an  elaborate  one,  as  its 
importance  deserved.  In  the  course  of  the  discussion 
Mr.  Chief  Justice  Taney  said  in  part :  We  do  not  think 
the  grant  of  mandamus  in  this  case  interferes  in  any 
respect  whatever  with  the  rights  and  duties  of  the  ex- 
ecutive as  it  does  not  seek  to  direct  or  control  the  Post- 
master-General in  the  discharge  of  any  official  duty  par- 
taking in  any  respect  of  an  executive  character.  The 
theory  of  the  constitution  undoubtedly  is  that  the  pow- 
(146) 


Ch.    5]  DUTIES  OF  THE  ADMINISTRATION.  g   38 

ers  of  government  are  divided  into  separate  depart- 
ments, and  so  far  as  these  powers  are  derived  from  the 
constitution  the  departments  must  be  regarded  as  in- 
dependent of  each  other;  but  beyond  that  all  are  sub- 
ject to  regulations  by  law  touching  the  discharge  of 
duties  required  to  be  performed.  The  executive  power 
is  vested  in  a  President,  and  so  far  as  his  powers  are 
derived  from  the  constitution  he  is  beyond  the  reach 
of  any  other  department;  but  it  by  no  means  follows 
that  every  officer  in  every  branch  of  the  department 
is  under  the  exclusive  direction  of  the  President.  There 
are  certain  political  duties  imposed  upon  many  officers 
of  the  executive  department  the  discharge  of  which  is 
under  the  direction  of  the  President;  but  it  would  be 
an  alarming  doctrine  that  Congress  cannot  impose  upon 
any  executive  officer  any  duty  they  may  think  proper. 
In  such  cases  the  duty  and  responsibility  grow  out  of 
and  are  subject  to  the  control  of  the  law.  Under  this 
law  the  Postmaster-General  is  vested  with  no  discre- 
tion or  control  over  the  decisions  of  the  Solicitor,  nor 
is  any  appeal  or  review  of  that  decision  provided  for 
by  the  act.  The  terms  of  the  submission  were  matters 
resting  entirely  in  the  discretion  of  Congress,  and  if 
they  thought  proper  to  vest  such  a  power  in  any  one, 
although  an  officer  of  the  government,  it  did  not  rest 
with  the  Postmaster-General  to  control  Congress  or  the 
Solicitor  in  that  affair.  To  contend  that  the  obliga- 
tions imposed  on  the  President  to  see  the  law  faith- 
fully executed  subjects  the  Postmaster-General  and 
the  whole  administration  to  the  direction  and  control 
of  the  President,  and  implies  a  power  to  forbid  their 
execution,   would  be  a  novel  construction  of  the  con- 

(147) 


§   38  ADMINISTRATIVE    LAW.  [Ch.   5 

stitution.  The  act  required  by  law  was  a  precise,  defi- 
nite act,  purely  ministerial.  It  was  not  an  official  one 
in  any  other  sense  than  being  the  transaction  of  the  de- 
partment where  the  books  and  accounts  were  kept.  All 
discretion  is  shut  out  by  the  positive  command  of  the 
law. 

These  are  extreme  cases  in  which  a  high  officer  of 
the  administration  is  held  in  no  better  position  before 
the  courts  than  the  meanest  officer.  It  may  be  well 
to  state  another  celebrated  case  of  this  sort,  United 
States  v.  Schurz,  102  U.  S.  378  (1880).  This  petition 
for  mandamus  alleged  that  the  relator  McBride  was 
possessed  of  all  the  qualifications  necessary  to  entitle 
him  to  pre-empt  one  hundred  and  sixty  acres  of  the 
public  lands  of  the  United  States;  that  he  had  acted 
in  compliance  with  the  land  laws  in  respect  to  occupa- 
tion of  such  appropriation;  that  his  proof  had  been 
filed  in  the  public  land  office  and  there  adjudicated; 
that  afterwards  the  patent  had  been  duly  countersigned 
and  recorded ;  but  that  delivery  of  the  deed  at  the  local 
land  office  had  been  refused  by  special  order  from  the 
Secretary  of  the  Interior. 

The  opinion  in  this  case  is  excellent,  one  of  Mr. 
Justice  Miller.%  at  his  best:  The  constitution  of  the 
United  States  declares  that  Congress  shall  have  power 
to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  and  other  property  be- 
longing to  the  United  States.  Under  this  provision 
the  sale  of  the  public  lands  was  placed  under  the  con- 
trol of  the  Secretary  of  the  Interior.  To  aid  him  in 
the  performance  of  this  duty  a  bureau  was  created, 
at  the  head  of  which  is  the  Commissioner  of  the  Gen- 
(148) 


Ch.   5]  DUTIES  OF  THE  ADMINISTRATION.  g   38 

eral  Land  Office,  with  many  subordinates.  To  them, 
as  a  special  tribunal,  Congress  confided  the  execution 
of  the  laws  which  regulate  the  surveying,  the  selling, 
and  the  general  care  of  these  lands.  Congress  has  also 
enacted  a  system  of  laws  by  which  rights  to  these 
lands  may  be  acquired,  and  the  title  of  the  government 
conveyed  to  the  citizen.  The  court  has  with  a  strong 
hand  upheld  the  doctrine  that  so  long  as  the  legal  title 
to  these  lands  remained  in  the  United  States  and  the  pro- 
ceedings were  yet  in  fieri,  the  courts  would  not  inter- 
fere to  control  the  exercise  of  the  power  thus  vested 
in  that  tribunal.  To  that  doctrine  we  still  adhere. 
We  are  of  opinion  that  when  upon  the  decision  of  the 
proper  office  the  citizen  has  become  entitled  to  a  patent 
and  such  a  patent  has  been  made  out  in  that  office 
and  signed  by  the  President,  sealed  with  the  seal  of 
the  General  Land  Office,  countersigned  by  the  Recorder 
of  the  Land  Office,  and  duly  recorded  in  the  Record 
Book,  it  becomes  a  solemn  public  act  of  the  govern- 
ment of  the  United  States.  But  no  further  authority 
to  consider  the  patentees'  case  remains  in  the  Land 
Office.  Their  power  is  functus  officio.  There  remains 
simply  the  ministerial  duty  to  deliver  the  patent,  a  duty 
which  can  be  enforced  by  mandamus  and  which  will 
open  the  portals  of  the  courts  to  a  performance  of  their 
order. 

The  position  of  the  courts  as  to  ministerial  duties 
is  therefore  square.  Whenever  a  duty  is  directed  by 
law,  it  will  be  commanded  by  the  court.  If  the  law  is 
not  carried  out  by  the  administration  of  its  own  mo- 
tion, it  will  be  enforced  by  the  motion  of  the  court. 
All  this  is  in  consequence  of  our  fundamental  idea  of 

(149) 


§   39  ADMINISTRATIVE    LAW.  [Ch.   5 

the  supremacy  of  law.  The  officer  must  act  in  accord- 
ance with  law,  just  as  every  person  must  act  in  ac- 
cordance with  law.  The  officer  will  be  forced  to  act 
in  accordance  with  law  if  the  law  so  provides,  just  as 
every  person  must  act  in  accordance  with  legal  process 
when  forced  to  act,  if  the  law  so  provides.  It  comes  to 
this,  then :  the  distinction  between  discretionary  powers 
and  ministerial  duties  is  in  last  analysis  the  question 
what  the  law  is  in  any  particular  case.29 

§  39.     Specific. 

So  far  as  this  discussion  has  gone,  this  distinction 
has  been  insisted  upon :  either  that  the  duty  was  minis- 
terial, as  in  these  latter  cases,  in  which  cases  the  rule 
was  positive  that  a  full  mandamus  would  issue,  or  that 
the  duty  was  discretionary,  as  in  those  former  decisions , 
in   which   cases   the   rule   was  positive  again   that   no 

29  Ministerial  Duties. — Reg.  v.  Income  Commissioners,  21  Q.  B. 
D.  313;  Marbury  v.  Madison,  1  Cranch  169;  Kendall  v.  United  States, 
12  Pet.  524;  United  States  v.  Schurz,  102  U.  S.  378;  United  States 
v.  Black,  128  U.  S.  40;  Smith  v.  Strobach,  50  Ala.  462;  Ex  parte 
Selma  R.  R.,  46  Ala.  423;  Danley  v.  Whiteley,  14  Ark.  687; 
Harpending  v.  Haight,  39  Cal.  189;  Land  Co.  v.  Routt,  17  Colo.  156; 
State  v.  Staub,  61  Conn.  553;  State  v.  Gamble,  13  Fla.  9;  Barks- 
dale  v.  Cobb,  16  Ga.  13;  People  v.  Kent,  160  111.  655;  Governor  v. 
Nelson,  6  Ind.  496;  Bryan  v.  Cattell,  15  la.  538;  State  v.  Francis, 
23  Kan.  495;  State  v.  Wrotnowski,  17  La.  Ann.  156;  Baker  v.  John- 
son. 41  Me.  15;  Magruder  v.  Swann,  25  Md.  173;  Deehan  v.  John- 
son, 141  Mass.  23;  People  v.  State  Auditors,  42  Mich.  422;  Chamber- 
lain v.  Sibley,  4  Minn.  309;  McCulloch  v.  Stone,  64  Miss.  378;  State 
v.  Lesueur,  136  Mo.  452;  Humboldt  Co.  v.  County  Com'rs,  6  Nev. 
30;  Kimball  v.  Lamprey,  19  N.  H.  215;  State  v.  Vanarsdale,  42  N. 
J.  L.  536;  People  v.  Collins,  7  Johns.  549;  Raleigh,  etc.,  R.  R. 
v.  Jenkins,  68  N.  C.  499;  State  v.  Auditor.  43  Oh.  St.  311;  Common- 
wealth v.  Martin,  170  Pa.  St.  118;  Randall  v.  Wetherell,  2  R.  I. 
120;  State  v.  County  Com'rs,  28  S.  C.  258;  Meadows  v.  Nesbit,  12  Lea 
486;  Bledsoe  v.  International  Ry.,  40  Tex.  537;  Sights  v.  Yarnalls,  12 
Grat.  292;  State  v.  Hastings,  15  Wis.  83. 

(150) 


Ch.   51  DUTIES  OF  THE  ADMINISTRATION.  K   39 

mandamus  would  issue.  Upon  this  statement  the  ques- 
tion arises:  why  may  not  a  duty  be  ministerial  at  first 
and  later  on  discretionary;  and  what  then?  Let  it 
be  supposed  for  an  example  that  it  is  the  duty  of  a 
State  Auditor  to  allow  claims  against  the  state,  but 
that  in  a  particular  case  he  refuses  to  pass  upon  a 
claim.  Why  may  it  not  be  said  that  it  is  his  minis- 
terial duty  to  take  action  in  the  matter,  but  that  it 
is  within  his  discretionary  power  to  allow  or  disallow? 
Such  a  rule  would  meet  many  difficulties  that  arise  in 
administration. 

The  case  just  supposed  is  People  v.  The  Auditor,  2 
Colo.  97  (1873).  In  this  decision  B,elford,  Justice, 
took  that  distinction :  Where  an  officer  is  charged  with 
the  performance  of  a  fairly  ministerial  duty,  and  he 
fails  to  perform  it,  a  writ  will  issue;  but  where  it  ap- 
pears that  the  officer,  as  in  this  case,  is  called  upon  to 
audit  and  examine  claims,  and  in  so  doing  is  invested 
with  judicial  powers,  a  court,  while  it  may  compel  him 
to  take  action,  will  never  dictate  what  his  decision  shall 
be,  and  this  is  the  exact  thing  which  the  plaintiffs  in 
error  asked.  If  a  party  were  to  present  a  claim  against 
the  territory,  and  the  auditor  should  refuse  to  exam- 
ine it,  the  court  would  issue  a  writ  commanding  him 
to  do  so.  But  this  case  is  not  of  that  character.  We 
are  asked  to  compel  the  auditor  not  to  audit  the  claim, 
but  to  allow  and  pay  it,  and  this,  too,  when  he  believes 
the  same  to  be  excessive  and  fraudulent.  The  discrim- 
ination made  in  this  case  is  a  useful  one;  and  it  is  often 
employed. 

The  principal  rule  remains,  when  a  duty  is  minis- 
terial in  all  respects,  a  court  will  direct    its  perform- 

(151) 


§   39  ADMINISTRATIVE    LAW.  [Ch.    5 

ance  upon  that  allegation  made  out.  One  of  the  lead- 
ing cases  upon  that  rule  at  the  present  time  is  Roberts 
v.  United  States,  176  U.  S.  221  (1900).  The  facts  upon 
which  this  controversy  arose  were  uncontradicted,  as 
follows :  One  Evans  had  done  a  large  amount  of  work 
for  the  District  of  Columbia  in  laying  concrete  and 
brick  pavements  in  the  City  of  Washington,  for  which 
two  certificates  were  issued  to  him.  After  the  issue 
of  these  certificates,  long  delays  followed  before  the 
claimant  could  get  them  into  his  possession,  because  he 
was  in  default.  In  the  meantime  various  acts  of  Con- 
gress had  been  passed  applicable  to  his  case.  At  last 
he  presented  his  claim  to  the  Treasurer  of  the  United 
States,  Roberts,  the  defendant  in  this  case.  The  Treas- 
urer thereupon  refused  to  pay  interest  upon  this  claim, 
taking  a  view  of  the  effect  of  the  various  statutes  in  the 
case  which  the  Supreme  Court  of  the  United  States 
held  to  be  unwarrantable.  His  final  defense  is  that 
mandamus  should  not  go  against  him,  error  or  no  error, 
since  the  making  of  payments  was  part  of  his  official 
function. 

The  Supreme  Court — Mr.  Justice  Peckham  writing 
the  opinion — disposed  of  this  position :  The  remain- 
ing and  most  important  objection  is  that  this  is  not 
a  case  in  which  the  writ  of  mandamus  can  properly 
be  issued  to  one  of  the  executive  officers  of  the  govern- 
ment. The  law  relating  to  mandamus  against  a  pub- 
lic officer  is  well  settled  in  the  abstract;  the  only  doubt 
which  arises,  being  whether  the  facts  regarding  any 
particular  case  bring  it  within  the  law  which  permits 
the  writ  to  issue  where  a  mere  ministerial  duty  is  im- 
posed upon  an  executive  officer,  which  duty  he  is  bound 
(152) 


Ch.    5]  DUTIES  OF  THE  ADMINISTRATION.  §39 

to  perform  without  any  further  question.  If  he  re- 
fuses under  such  circumstances,  mandamus  will  lie  to 
compel  him  to  perform  his  duty.  In  this  case  there 
is  but  one  act  of  Congress  to  be  examined.  We  think 
its  construction  quite  plain  and  unmistakable.  It  di- 
rects the  Treasurer  to  pay  interest  on  the  certificates 
redeemed  by  him;  and  the  only  question  is  whether 
they  had  been  redeemed  by  him  within  the  meaning  of 
the  act.  That  they  were,  we  have  already  attempted 
to  show;  and  the  duty  of  the  Treasurer  seems  to  us 
to  be  at  once  plain,  imperative,  and  entirely  ministerial, 
and  he  should  have  paid  the  interest  as  directed  in  the 
statute. 

Unless  the  writ  of  mandamus  is  to  become  practical- 
ly valueless,  and  is  to  be  refused  even  where  a  public 
officer  is  commanded  to  do  a  particular  act  by  virtue 
of  a  particular  statute,  this  writ  should  be  granted. 
Every  statute  to  some  extent  requires  construction  by 
the  public  officer  whose  duties  may  be  defined  therein. 
Such  officer  must  read  the  law;  and  he  must  therefore 
in  a  certain  sense  construe  it,  in  order  to  form  a  judg- 
ment from  the  language  what  duty  he  is  directed  by 
the  statute  to  perform.  But  that  does  not  necessarily 
and  in  all  cases  make  the  duty  of  the  officer  anything 
other  than  a  ministerial  one.  If  the  law  direct  him 
to  perform  an  act  in  regard  to  which  no  discretion  is 
committed  to  him,  and  which  upon  the  facts  existing 
he  is  bound  to  perform,  then  that  act  is  ministerial, 
although  depending  upon  a  statute  which  requires,  in 
some  degree,  a  construction  of  its  language  by  the 
officer.  Unless  this  be  so,  the  value  of  the  writ  is  very 
greatly  impaired.30 

30  Specific— Hall   v.   Steele,   82   Ala.   562;    Pritchard  v.   Woodruff, 

(153) 


§   40  ADMINISTRATIVE    LAW.  [C'n.   5 

§  40.     Mandatory. 

That  is  the  beginning  and  the  end  of  the  adminis- 
trative function — the  law.  The  function  of  the  admin- 
istration is  to  enforce  the  law ;  in  a  case  where  there  is 
explicit  law  to  enforce,  there  is  no  scope  for  any  func- 
tion of  the  administration.  The  law  is  the  authority 
for  administration ;  the  law  is  also  the  limitation  upon 
the  administration.  This  appears  by  an  examination 
of  both  sides  of  the  statement  that  the  law  is  at  the  be- 
ginning and  the  end  of  the  administrative  function. 
This  involves  two  propositions,  one  negative,  one  posi- 
tive; if  there  is  no  law  there  can  be  no  sort  of  govern- 
ment; if  there  is  law  there  may  be  any  sort  of  admin- 
istration. All  this  is  statement  and  restatement  of  an 
abstract  proposition.  It  will  be  well  to  proceed  at  once 
to  more  definite  discussion. 

The  negative  proposition,  that  if  there  be  no  law  there 
can  be  no  administration,  must  be  evident ;  since  if  there 
is  no  law  to  enforce  there  cannot  be  any  law  to  carry  out. 
There  is  a  brief  case  in  one  of  the  books  of  administrative 
cases  to  that  effect— McElfatrick,  5  Pen.  Dec.  278  (1S92) . 
This  was  a  claim  for  a  pension  as  the  dependent  sis- 
ter. It  appeared  by  construction  of  the  pension  law 
that  no  pension  was  provided  by  law  for  a  dependent 
brother  or  sister  until  after  the  termination  of  the  prior 

36  Ark.  196;  Fowler  v.  Peirce,  2  Cal.  165;  Land  Co.  v.  Routt.  IT 
Colo.  156;  Bryan  v.  Cattell,  15  la.  538;  Gill  v.  State,  72  Ind.  266; 
Martin  v.  Ingham,  38  Kan.  641;  State  v.  Board  of  Liquidation,  42 
La.  Ann.  647;  Chase  v.  Canal  Co.,  10  Pick.  244;  People  v.  State 
Treasurer,  24  Mich.  468;  Swann  v.  Buck,  40  Miss.  268;  State  v. 
Hoblitzelle,  85  Mo.  620;  State  v.  Milne,  36  Neb.  301;  Humboldt  Co. 
v.  County  Com'rs,  6  Nev.  32;  School  Directors  v.  Anderson,  45  Pa. 
St.  388;  Lane  v.  Schomp.  5  C.  E.  Green,  82;  Citizens'  Bank  v.  Wright, 
6  Oh.  St.  318;  Cotten  v.  Ellis,  7  Jones  L.  545. 

(154) 


Ch.   5]  DUTIES  OF  THE  ADMINISTRATION.  §   40 

right  to  pension  of  the  dependent  mother  and  father, 
and  at  that  date  the  alleged  dependent  brother  or  sis- 
ter was  under  sixteen  years  of  age.  As  at  that  date 
this  dependent  had  long  since  passed  the  age  of  six- 
teen, the  department  rejected  the  claim. 

This  paragraph  in  the  opinion  of  Assistant  Secretary 
Bussey  must  be  fundamental  in  all  discussion  of  the 
function  of  the  administration :  The  department  has 
no  right,  authority,  or  power  to  grant  a  pension  to 
any  person  for  whom  the  law  does  not  provide  a  pen- 
sion, no  matter  what  may  be  the  circumstances  of  the 
case,  nor  how  much  it  may  appeal  to  the  sympathies. 
The  only  relief  for  the  appellant  must  be  sought  at  the 
hands  of  Congress,  whose  power  to  grant  pensions  is 
unlimited.  The  rejection  of  this  claim  by  the  bureau 
was  strictly  in  accordance  with  law,  was  undoubtedly 
correct,  and  is  affirmed  accordingly.  A  brief  statement 
like  this  clarifies  matters.  It  is  of  course  obvious.  It 
is  nevertheless  indispensable  from  time  to  time  in  any 
discussion  to  recur  to  first  principles. 

There  is  one  class  of  cases  which  upon  analysis  re- 
quire nothing  else  than  this  elementary  rule  for  their 
solution.  Davis  v.  Porter,  G6  Cal.  658  (1885),  may  rep- 
resent this  class  as  well  as  any  other  case.  This  was 
a  petition  for  mandamus  to  compel  the  treasurer  of 
the  City  of  Sacramento  to  pay  to  the  petitioner  the 
amount  due  upon  certain  coupons,  together  with  inter- 
est upon  the  same  from  the  date  of  maturity.  A  mo- 
tion was  made  to  strike  from  the  directions  the  clause 
requiring  the  payment  of  interest,  upon  the  ground 
that  there  was  no  provision  of  law  which  authorized 
the  payment  of  such  interest.     This  case  was  made  out 

(155) 


§   40  ADMINISTRATIVE    LAW.  [Ch.   5 

to  the  court,  which  found  accordingly  that,  upon  all 
the  statute  law  upon  the  subject,  there  was  no  such 
duty.  What  must  be  the  result  of  such  a  finding  upon 
the  issuance  of  the  mandamus? 

There  could  only  be  one  result,  as  Mr.  Justice  Thorn- 
ton points  out:  Is  the  petitioner  entitled  to  the  writ 
with  the  command  as  claimed  by  him?  This  writ  is 
issued  to  enforce  the  performance  of  an  act  especially 
enjoined  by  law,  as  a  duty  resulting  from  an  office, 
trust  or  station.  No  court  in  this  state  can  command 
a  person  to  perform  an  act  beyond  that  enjoined  by  law 
upon  him  as  a  duty  pertaining  to  his  office  or  position. 
If  then  such  command  in  the  writ  of  mandate  to  be 
issued  would  impose  upon  the  respondent,  as  treasurer 
of  the  city  as  aforesaid,  the  performance  of  an  act  be- 
yond what  was  required  of  him  by  law  in  the  discharge  of 
the  duties  of  his  office,  such  command  should  not  be  in- 
serted in  the  writ. 

All  of  which  amounts  to  this :  that  if  there  is  no  law 
to  execute  there  is  no  duty  to  perform — which  must 
be  an  axiom  in  the  law  governing  administration.  All 
of  the  cases  discussed  in  the  last  paragraph  which  bear 
upon  ministerial  duties  are  in  point  in  this  matter  in 
<a  negative  way,  for  it  is  only  if  the  duty  is  directed  by 
some  exact  law  that  the  courts  will  command  the  per- 
formance.31 

si  Mandatory. — Supervisors  v.  United  States,  4  Wall.  435;  United 
States  v.  Windom,  137  U.  S.  643;  Ex  parte  Banks,  28  Ala.  28;  Mid- 
dleton  v.  Low,  30  Cal.  596;  Freeman  v.  Selectmen,  34  Conn.  406; 
Howell  v.  Cooper,  2  Colo.  App.  531;  State  v.  Barker,  4  Kan.  379;  Lo- 
gansport  v.  Wright,  25  Ind.  512;  Brown  v.  Crego,  32  la.  498;  Thomas 
v.  Owens,  4  Md.  189;  People  v.  Supervisors,  3  Mich.  475;  State 
v.  Francis,  95  Mo.  44;  State  v.  Roderick,  23  Neb.  505;  State  v. 
Blasdel,  4  Nev.  241;    State  v.  Titus,  47  N.  J.  L.  89;    Raleigh,  etc., 

(156) 


Ch.    5]  DUTIES  OF  THE  ADMINISTRATION.  §   41 

§  41.     Conclusion. 

It  is  hoped  that  nothing  that  has  been  said  in  this 
chapter  is  inconsistent  with  what  has  been  said  in  the 
previous  discussion  or  with  what  is  said  in  the  subse- 
quent discussion.  This  is  a  comprehensive  chapter  in 
a  way;  for  the  whole  doctrine  of  administrative  law  is 
involved.  This  chapter  deals  with  the  functions  of  the 
administration  as  a  whole.  In  one  view  it  shows  how 
far  these  functions  go;  how  that  in  most  of  its  func- 
tions the  methods  and  means  of  administration  are  with- 
in the  discretion  of  the  department;  and  that  there- 
fore in  the  exercise  of  this  discretion  the  department 
is  independent,  so  that  no  other  department  can  inquire 
what  has  been  done  within  the  scope  of  these  functions. 
In  another  view  it  shows  how  soon  these  functions  are 
limited;  how  that  in  all  actions  the  administration  is 
subject  to  the  supremacy  of  the  law  of  the  land,  so 
that  if  an  officer  of  the  administration  is  ever  found 
without  law  to  justify  his  action  he  is  liable  to  any 
process  the  courts  may  send  against  him.  This  is  the 
whole  of  administrative  law  in  general  outline;  it  re- 
mains to  fill  in  the  detail. 

According  to  the  obvious  distribution  of  the  func- 
tions of  government,  it  is  the  legislature  which  makes 
the  laws ;  it  is  the  executive  which  enforces  the  laws ;  it 
is  the  judiciary  that  adjudicates  upon  the  laws.  With- 
out doubt  this  enforcement  of  the  laws  is  the  principal 
business  of  the  administration.  Without  enforcement 
of  the  laws,  government  would  come  to  its.  end;  the 

R.  R.  v.  Jenkins,  68  N.  C.  502;  State  v.  Chase,  5  Oh.  St.  528;  Com- 
monwealth v.  Lyter,  162  Pa.  St.  50;  Peters  v.  Auditor,  33  Grat. 
368. 

(157) 


8    4i  ADMINISTRATIVE    LAW.  [Ch.    5 

administration  is  the  life  of  the  government.  It  is  now 
recognized  al  lasl  thai  it  is  in  its  administration  that 
a  government  succeeds  or  fails;  no  advance  can  be  made 
unless  the  administration  takes  up  the  work.  To  get 
at  the  real  business  of  government,  therefore,  it  is  neces- 
sary to  make  a  careful  study  of  the  working  of  the  ad- 
ministration. And  that  requires  an  insight  into  the 
nature  of  the  function  of  the  administration.  Admin- 
istrative duties  may  then  be  defined  as  those  functions 
which  are  directed  to  the  enforcement  of  the  laws.  That 
the  executive  shall  see  that  the  laws  are  faithfully  exe- 
cuted  is  the  common  phrase  of  the  constitutions.  The 
aim  of  this  discussion  is  to  arrive  at  some  idea  of  the 
nature  of  the  duties  of  the  administration. 
(158) 


CHAPTER  VI. 

THE   MEMBERSHIP   IN   THE   ADMINISTRATION. 

§  42.  Introduction. 

43.  Classification  of  Officials. 

44.  Officer. 

45.  Employee. 

46.  Selection  of  Officials. 

47.  Election. 

48.  Appointment. 

49.  Removal  of  Officials. 

50.  Arbitrary. 

51.  Judicial. 

52.  Conclusion. 

§  42.     Introduction. 

One  of  the  most  particular  parts  of  the  law  govern- 
ing administration  is  that  which  is  concerned  with  mem- 
bership in  the  administration.  One  of  the  elements  of 
the  situation  is  the  officer  himself,  considered  apart. 
What  is  the  selection  of  the  officer — election  or  appoint- 
ment? What  is  the  term  of  the  officer— term  or  pleas- 
ure? How  is  the  removal  of  the  officer — arbitrary  or 
judicial?  Upon  all  of  these  questions  concerning  the 
officer  as  a  member  of  the  association  there  is  an  elab- 
orate law.  It  is  to  be  outlined  but  briefly  in  this  dis- 
cussion. 

§  43.     Classification  of  officials. 

The  first  question  in  the  organization  of  the  admin- 
istration is  concerning  its  component  parts.  These  are 
the  office  and  the  employment;  the  principal  agencies 

(159) 


1  42  ADMINISTRATIVE    LAW.  [Ch.   6 

of  the  administration  are  its  officers,  the  minor  agen- 
cies are  its  employees.  The  emphasis  of  this  distinc- 
tion is  upon  status  rather  than  upon  function.  Office 
is  a  conception  of  public  law,  employment  is  a  concep- 
tion of  private  law;  the  officer  is  the  public  agent,  the 
employee  is  the  private  agent.  That  the  officer  has  the 
principal  role  in  administration  is  as  obvious  as  that 
the  employee  has  the  minor  part.  In  abstract  theory 
alone  it  is  possible  that  the  administration  should  con- 
tract for  the  services  of  a  Secretary  of  State;  in  any 
administration  that  has  been  known,  that  position  has 
always  been  filled  by  an  officer. 

Upon  this  distinction  between  office  and  employment 
the  leading  case  seems  to  be  United  States  v.  Maurice, 

2  Brock.  96  (1823).  This  was  an  action  upon  a  bond 
running  to  the  United  States  given  for  the  faithful  dis- 
charge of  the  duties  appertaining  to  his  office  by  an 
agent  of  fortifications  and  his  sureties.  The  defend- 
ants insisted  that  the  bond  was  void,  it  being  taken  for 
the  performance  of  duties  of  an  office,  which  office  had 
no  legal  existence,  and  consequently  no  legal  duties; 
for  no  violation  of  duty,  it  was  urged,  could  take  place 
where  no  duty  existed.  Moreover,  it  was  argued,  since 
the  appointment  was  not  given  to  the  Secretary  of  War 
by  statute,  this  officer  so  appointed  could  be  no  officer 
in  any  case. 

Chief  Justice  Marshall,  then  upon  circuit,  held :  Is 
the  agent  of  fortifications  an  officer  of  the  United 
States?  An  office  is  defined  to  be  a  public  charge  or 
employment,  and  he  who  performs  the  duty  of  an  office 
is  an  officer.  Although  an  office  is  an  employment,  it 
does  not  follow  that  every  employment  is  an  office.  A 
(160) 


Ch.   6]  ITS  MEMBERSHIP.  §   43 

man  may  certainly  be  employed  under  a  contract  ex- 
press or  implied  to  do  an  act  or  to  perform  a  service 
without  becoming  an  officer.  But  if  the  duty  be  a 
continuing  one,  which  is  defined  by  rules  prescribed 
by  the  government,  and  not  by  contract,  which  an  in- 
dividual is  appointed  by  the  government  to  perform, 
who  enters  on  the  duties  appertaining  to  his  station 
without  any  contract  defining  them,  if  those  duties  con- 
tinue although  the  person  be  changed,  it  seems  very 
difficult  to  distinguish  such  a  charge  or  employment 
from  an  office,  or  the  person  who  performs  the  duties 
from  an  officer.  The  official  bond  given  in  this  case 
by  this  agent  of  fortifications,  whose  appointment  was 
irregular  but  whose  office  was  established  by  law,  is 
binding  on  his  sureties. 

In  this  last  case  the  office  was  found,  but  no  proper 
appointment  to  it.  That  raises  the  question  between 
officers  de  jure  and  officers  de  facto.  The  former  is  a 
normal  case.  An  officer  is  de  facto  where  the  duties 
of  the  office  are  exercised :  Without  known  appoint- 
ment or  election,  but  under  such  circumstances  of  repu- 
tation that  acquiescence  is  calculated  to  induce  people  to 
submit  to  or  invoke  his  action  supposing  him  to  be  the 
officer  he  assumed  to  be;  under  color  of  a  known  and 
valid  appointment  or  election,  but  where  the  officer  had 
failed  to  conform  to  some  precedent  requirement  or  con 
dition;  because  the  officer  was  not  eligible  or  because 
there  was  want  of  power  in  the  electing  or  appointing 
body,  or  under  color  of  an  election  or  appointment  pur- 
suant to  an  unconstitutional  law  before  the  same  was 
adjudged  such.  Although  the  acts  of  such  an  officer 
are  not  those  of  a  lawful  officer,  the  law  will  hold  them 

(161) 

Adm.  Law — 11. 


§   43  ADMINISTRATIVE    LAW.  [Ch.   6 

valid  so  far  as  the  interests  of  all  persons  concerned 
are  affected. 

An  excellent  discussion  of  these  principles  is  to  be 
found  in  a  ruling  on  Additional  Compensation,  4  Compt. 
Dec.  G9G  (1898).  Bevised  Statutes,  section  17(35,  pro- 
vided that  no  officer  in  any  branch  of  the  public  service 
should  receive  any  additional  compensation  for  any  other 
service  whatever.  One  Dickinson  was  a  disbursing 
agent  for  the  World's  Columbian  Commission;  he  at 
the  same  time  acted  as  Secretary.  The  question  was 
whether  this  provision  of  the  statutes  applied  to  him. 
And  it  was  held  that  it  did  not;  since  neither  of  these 
positions  was  an  office. 

Comptroller  Tracewell  wrote,  in  substance,  on  this 
point:  The  essential  characteristic  of  an  office  is  the 
exercise  of  some  function  of  the  government.  An  em- 
ploye is  one  who  is  employed  under  a  contract  to  per- 
form a.  service.  A  public  employment  is  distinguished 
from  a  public  office  by  the  fact  that  in  the  one  case  the 
authority  to  perform  a  public  service  is  derived  from 
a  contract,  while  in  the  other  it  is  derived  from  the  law. 
An  office  is  a  public  station.  The  term  embraces  the 
ideas  of  tenure,  duration,  emolument,  and  duties.  If 
there  is  a  contract  with  another  person  to  perform  some 
portion  of  the  service,  the  persons  thus  employed  are 
known  as  agents  or  employees.32 

32  Classification  of  Officers. — United  States  v.  Hartwell,  6  Wall. 
393;  State  v.  Gardner,  43  Ala.  234;  Humphry  v.  Sadler,  40  Ark.  100; 
Patton  v.  Board  of  Health,  127  Cal.  388;  Ogden  v.  Raymond,  22  Conn. 
379;  In  re  House  Bill,  9  Colo.  62S;  State  v.  Hoeker,  39  Fla.  477;  Polk 
v.  James,  68  Ga.  128;  Matter  of  Notaries  Public,  8  Hawaii,  561; 
People  v.  Kipley,  171  111.  44;  Foltz  v.  Kerlin,  105  Ind.  221;  State 
v.  Spaulding,  102  la.  639;  State  v.  Cobb,  2  Kan.  33;  Perkins  v. 
Auditor,  79  Ky.  306;  Opinion  of  Justices,  3  Me.  4S1:  County  Com'rs 

(162) 


Ch.   6]  ITS  MEMBERSHIP.  •  <    44 

§  44.     Officer. 

A  public  office,  then,  is  the  right,  authority  and  duty 
conferred  by  law  by  which  for  a  given  period,  either 
fixed  by  law  or  through  the  pleasure  of  the  creating 
power  of  government,  an  individual  is  invested  with 
some  portion  of  the  sovereign  functions  of  the  govern- 
ment to  be  exercised  by  him  for  the  benefit  of  the  pub- 
lic. The  warrant  to  exercise  powers  is  conferred,  not 
by  a  contract,  but  by  the  law.  It  finds  its  source  and 
limitation  in  some  act  of  expression  of  governmental 
power.  Oath,  salary,  operation,  scope  of  duties,  are 
signs  of  the  official  status;  but  no  one  is  essential.  The 
essential  thing  is  that  in  some  way  or  other  the  officer 
is  identified  with  the  government. 

The  position  of  the  officer  is  well  set  forth  in  Byers 
v.  United  States,  22  Ct.  of  CI.  59  (1887).  The  Consul- 
General  at  Rome  was  paid  at  the  rate  of  f  2,000  a  year ; 
he  claimed  that  the  salary  was  $3,000;  and  this  suit  is 
brought  for  the  difference.  For  the  year  during  which 
he  held  office  the  Diplomatic  Appropriation  Act  appro- 
priated |2,000,  of  which  the  Secretary  of  State  notified 
him  when  his  appointment  was  made.  His  predecessor 
in  office  had,  indeed,  been  paid  at  the  rate  of  $3,000 
per  annum  by  disposition  of  the  executive  but  in  the 

v.  Duvall,  54  Md.  350;  Brown  v.  Russell,  166  Mass.  14;  People  v. 
Langdon,  40  Mich.  673;  County  Com'rs  v.  Jones,  18  Minn.  199; 
State  v.  Bus,  135  Mo.  325;  Shelby  v.  Alcorn,  36  Miss.  273;  State 
v.  Moores,  52  Neb.  770;  State  v.  Broome,  61  N.  J.  L.  115;  White- 
house  v.  Langdon,  10  N.  H.  331;  People  v.  Vilas,  36  N.  Y.  459; 
Eliason  v.  Coleman,  86  N.  C.  237;  State  v.  Jennings,  57  Oh.  St. 
415;  Hamlin  v.  Kassafer,  15  Ore.  456;  Commonwealth  v.  Evans, 
74  Pa.  St.  124;  Gray  v.  Granger,  17  R.  I.  201;  Alexander  v.  Mc- 
Kenzie,  2  S.  C.  81;  Beard  v.  Decatur,  64  Tex.  11;  McCorniek  v. 
Thatcher,  8  Utah.  294;  Leigh's  Case,  1  Munf.  468;  Matter  of  Mos- 
ness,  39  Wis.  509. 

(163) 


§   44  ADMINISTRATIVE    LAW.  [Ch.    6 

present  case  it  was  plain  that  the  present  appointment 
was  upon  the  $2>000  basis. 

The  case  is  of  interest  for  the  analysis  of  the  situa- 
tion. Richardson,  the  Chief  Justice,  said  in  one  part : 
It  has  been  claimed  by  the  executive  that  by  the  con- 
stitution to  the  executive  alone  is  granted  the  power 
to  appoint  diplomatic  agents  of  any  rank  or  title  at 
any  time  and  at  any  place;  and  upon  the  exercise  of 
this  power  Congress  can  place  no  extension  or  limita- 
tion by  undertaking  either  to  create,  abolish  or  change 
the  character,  title  or  rank  of  officers.  On  the  other 
hand,  to  the  legislative  branch  of  the  government  alone 
is  granted  the  power  to  provide  for  the  compensation 
of  those  as  well  as  all  other  public  servants.  During 
part  of  the  terms  of  the  early  presidents,  Congress  an- 
nually appropriated  a  sum  in  gross  for  the  expenses 
of  intercourse  with  foreign  nations,  leaving  it  to  the 
executive  to  fix  the  salaries  of  its  several  appointees. 
In  some  cases  appropriations  have  been  made  for  par- 
ticular officers,  not  to  exceed  the  sums  named,  still  leav- 
ing the  executive  all  discretion  to  determine  the  amount 
to  be  paid.  When  Congress,  by  inadvertence  or  other- 
wise, has  used  language  in  legislative  enactments  which 
appear  to  encroach  upon  the  constitutional  preroga- 
tive claimed  by  the  executive  in  the  establishment  of 
diplomatic  agents  abroad,  it  has  been  met  with  digni- 
fied expressions  of  exception. 

This  distinction  between  an  officer  and  an  agent  is 
seen  again  in  Ogden  v.  Raymond,  22  Conn.  379  (1853). 
This  was  an  action  of  assumpsit  to  recover  for  services 
for  teaching  school  by  the  plaintiff.  The  defense  of 
the  defendant  was  that  the  services  in  question  were 
(164) 


Ch.   6]  ITS  MEMBERSHIP.  §   45 

rendered  to  a  school  district  in  consequence  of  a  con- 
tract made  by  the  defendant  as  trustee  of  the  school 
district.  Is  a  school  trustee  an  officer  or  an  agent 
then?     That  is  the  issue. 

Ellsworth  held  on  that  point  in  substance:  The 
defendant  was  a  public  agent  and  is  therefore  to  be 
presumed  to  have  acted  in  a  public  capacity.  We  ap- 
prehend that  the  defendant,  deriving  his  power  from 
a  general  law  in  an  election  by  the  people,  is  a  public 
agent  as  much  as  an  officer  of  the  state,  county,  town 
or  district  is.  Wherein  is  the  difference?  All  derive 
their  power  from  the  same  source.  All  such  are  offi- 
cers, not  agents.  The  determining  thing  is  that  the 
person  is  constituted  a  representative  of  the  govern- 
ment.33 

§  45.     Employe. 

An  elementary  case  upon  this  distinction  between 
office  and  employment  is  Daily  v.  Freeholders  of  Essex, 
58  N.  J.  L.  319  (1895).  An  act  to  reorganize  the 
boards  of  chosen  freeholders,  etc.,  passed  in  1894,  pro- 
vided in  one  clause  that  the  terms  of  office  of  all  offi- 
cers now  holding  office  shall  expire  and  all  such  offices 
shall  become  vacant.     Did  that  law  apply  to  the  plain- 

33  Officer. — United  States  v.  Hartwell,  6  Wall.  393;  Comer  v. 
Bankhead,  70  Ala.  493;  Humphry  v.  Sadler,  40  Ark.  100;  People 
v.  Woodbury,  14  Cal.  43;  Castle  v.  Lawlor,  47  Conn.  340;  Kennedy 
v.  School  Dist,  48  la.  189;  State  v.  Cobb,  2  Kan.  33;  Snapp  v. 
Commonwealth,  82  Ky.  173;  McManus  v.  Weston,  164  Mass.  263; 
People  v.  Langdon,  40  Mich.  675;  State  v.  May,  106  Mo.  488;  Peo- 
ple v.  Pinckney,  32  N.  Y.  377;  Kenny  v.  Hudspeth,  30  Vroom.  320; 
Doyle  v.  Alderman  of  Raleigh,  89  N.  C.  133;  State  v.  Jennings,  57 
Oh.  St.  415;  In  re  Newport  Charter,  14  R.  I.  655;  Alexander  v.  Mc- 
Kenzie,  2  S.  C.  81;  United  States  v.  Hatch,  1  Pin.  182. 

(165) 


§   45  ADMINISTRATIVE    LAW.  [Ch.   6 

tiff  in  this  case,  a  janitor  of  the  court-house — was  he 
an  officer  or  was  he  an  employee? 

Lippixcott,  J.,  said  as  to  that:  It  is  clear  from  the 
provisions  of  this  section  of  the  act  that  the  prosecutor, 
a  janitor  of  the  court-house,  was  protected  from  removal 
unless  for  cause  and  upon  notice  and  a  hearing.  There 
exists  no  justification  for  the  suggestion  that  he  held 
a  public  office.  He  was  holding  a  position.  He  was 
no  more  a  public  officer  of  the  county  by  virtue  of  his 
appointment  as  janitor,  than  is  the  janitor  of  an  insur- 
ance building  an  officer  of  the  insurance  company  that 
occupies  it.  This  is  too  clear,  indeed,  for  further  dis- 
cussion. 

The  relation  between  officer  and  employee  it  seems 
may  be  stated  in  as  brief  a  form  as  this:  The  offi- 
cer may  employ  agents  when  necessary  in  the  course 
of  administration — Power  of  Appointment,  4  Opin.  248 
(1843).  The  questions  propounded  concerned,  first, 
whether  the  executive  could  appoint  an  agent  or  com- 
missioner to  make  certain  investigations ;  second,  wheth- 
er such  agent  or  commissioner  could  be  paid  under  a 
general  appropriation  law.  It  was  intimated  in  the 
request  that  the  urgency  was  pressing,  and  that  the 
Secretary  of  War  felt  that  the  best  interests  of  the 
country  called  for  this  particular  appointment  at  this 
particular  time.  Employment  of  agents,  it  was  claimed, 
was  a  method  of  administration. 

The  opinion  of  Attorney-General  Nelson  was  brief, 
but  it  was  to  the  point:  The  power  of  appointment  of 
agents  results  from  the  obligation  of  the  executive  de- 
partment of  the  government  to  take  care  that  the  laws 
be  faithfully  executed;  an  obligation  imposed  by  the 
(166) 


Ch.    6]  ITS  MEMBERSHIP.  §   46 

constitution  and  from  the  authority  of  which  no  mere 
act  of  legislation  may  operate  as  a  dispensation.  Con- 
gress may,  however,  indirectly  limit  the  exercise  of  this 
power  by  refusing  the  appropriations  to  sustain  it,  and 
thus  hamper  a  function  which  it  is  not  competent  to 
destroy.  The  authority  to  requite  such  services  can- 
not safely  be  implied  from  the  general  terms  of  an  ap- 
propriation law  in  view  of  the  qualifying  enactments. 
This  special  power  to  employ  agents  is  a  general  in- 
ference from  the  constitution  and  from  the  constant 
practice  in  all  administration.  The  administration  has 
certain  executive  functions  and  certain  large  admin- 
istrative functions.  It  is  obvious  that  the  President, 
in  whom  these  powers  are  vested,  must  perform  them 
largely  through  agents.  Hence,  he  must  have  incident- 
ally the  power  to  appoint  officers  and  employ  employees 
for  these  purposes  if  Congress  do  not  furnish  them  or 
if  Congress  do  not  furnish  such  as  he  wishes.  The  same 
applies  to  his  principal  subordinates.  The  check  is 
thai  these  agents  cannot  be  paid  unless  there  be  general 
or  special  appropriation  by  Congress  that  is  applica- 
ble.34 

§  46.     Selection  of  officials. 

There  are  two  methods  of  selection  for  office:  first, 
by  election;  second,  by  appointment.     In  every  admin- 

■■•■*  Employe.— United  States  v.  Mouat,  124  U.  S.  303;  Auffmordt 
v.  Hedden,  30  Fed.  360;  State  v.  Gardner,  43  Ala.  234;  McDaniel 
v.  Yuba  Co.,  14  Cal.  444;  Perkins  v.  New  Haven,  53  Conn.  215; 
State  v.  Spaulding,  102  la.  639;  Maxwell  v.  Mcllvoy,  2  Bibb  211; 
Farwell  v.  Rockland,  62  Me.  296;  Trainor  v.  Board,  89  Mich.  162; 
Lindsey  v.  Attorney-General,  33  Miss.  508;  Whitehouse  v.  Lang- 
don,  10  N.  H.  331;  State  v.  Broome,  61  N.  J.  L.  115;  Eliason  v. 
Coleman,  86  N.  C.  237;  State  v.  Anderson,  57  Oh.  St.  429;  Sawyer 
v.  Corse,  17  Grat.  230;  Matter  of  Janitor,  35  Wis.  410. 

(167) 


§   46  ADMINISTRATIVE    LAW.  [Ch.    6 

istration,  both  methods  are  found,  the  officers  are  in 
part  elected;  in  part,  appointed.  Whether  election  or 
appointment  preponderates  is  the  question.  In  one  way 
or  another  it  all  comes  back  to  the  people.  In  the  case 
of  election  the  selection  of  the  people  is  direct;  each 
officer  is  designated  by  the  electorate.  In  the  case  of 
appointment,  the  highest  officer  is  elected  by  the  peo- 
ple, and  that  officer  designates  the  others.  In  the  case 
of  election  it  comes  from  the  people  directly ;  in  the  case 
of  appointment,  indirectly;  but  all  is  derived  from  the 
sovereignty  of  the  people  in  either  case. 

If  it  becomes  necessary  to  draw  a  distinction  between 
election  and  appointment,  from  the  very  nature  of  the 
case  the  distinction  between  election  and  appointment 
becomes  one  of  degree.  This  test  may  help:  when  an 
officer  appointed  is  an  inferior,  the  action  will  be  ap- 
pointment. Election  is  a  designation  by  the  people 
putting  someone  over  them;  appointment  is  the  desig- 
nation by  an  officer  putting  someone  under  him. 

This  distinction  between  appointment  and  election  is, 
perhaps,  the  most  consequential  in  the  law  of  admin- 
istration. It  is  the  question  between  centralization  and 
decentralization.  Whatever  bonds  there  are  between 
officers  experience  proves  are  determined  by  the  question 
of  origin.  The  theory  of  the  law  is  that  the  responsibility 
of  the  official  is  to  the  electorate;  that  is.  the  responsibil- 
ity of  an  elected  official  is  political  only.  The  responsi- 
bility of  an  appointed  official  to  a  superior  may  be  fairly 
called,  for  distinction,  administrative.  Unity  in  admin- 
istration cannot  exist  when  an  inferior  can  plead  against 
the  order  of  a  superior  his  common  designation  by  popu- 
(168) 


Ch.   6]  ITS  MEMBERSHIP.  §  47 

lar  will.     Every  officer  who  is  elected  by  the  people  is 
upon  equal  terms  with  every  other  officer.35 

§  47.     Election. 

The  first  method,  then,  is  election.  The  law  of  election 
is  an  external  law  to  the  administration.  The  election 
of  a  governor  and  of  a  judge  are  conducted  according 
to  the  same  law.  The  official  becomes  a  subject  of  ad- 
ministrative law  strictly  only  when  the  election  is  fin- 
ished, when  he  comes  with  his  valid  credential.  The 
officer,  then,  is  taken  into  the  administration.  What 
follows  is  law  of  the  administration.  What  precedes  is 
not.  Whether  there  was  a  nomination  in  legal  form; 
whether  voters  were  qualified;  whether  there  was  a 
proper  election ;  whether  a  fair  count — these  are  ques- 
tions of  the  complex  law  of  elections  which  governs 
these  matters. 

The  right  to  office  is  not  a  natural  right.  It  is  limited 
in  various  ways,  although,  broadly  speaking,  it  is  the 
principle  of  our  law  that  the  right  to  office  is  coexten- 
sive with  the  right  of  suffrage.     There  are  feAV  positive 

35  Creation  of  Officers. — Quackenbush  v.  United  States,  177  U. 
S.  27;  Ex  parte  Lambert,  52  Ala.  79;  State  v.  Askew,  48  Ark.  82; 
Conger  v.  Gilmer,  32  Cal.  75;  People  v.  Osborne,  7  Colo.  605;  State 
v.  Barbour,  53  Conn.  76;  Matter  of  Executive  Communication,  25 
Pla.  426;  Bradford  v.  Justices,  33  Ga.  332;  People  v.  Dutcher,  56 
111.  144;  Cleveland,  etc.,  R.  R.  v.  Backus,  133  Ind.  513;  Whittam 
v.  Zahorik,  91  la.  23;  Taylor  v.  Commonwealth,  3  J.  J.  Marsh.  401; 
State  v  Abbott,  41  La.  Ann.  1096;  Silver  v.  Magruder,  32  Md.  3,87; 
Speed  v.  Crawford,  3  Met.  (Ky.)  207;  Lawrence  v.  Hanley,  84  Mich. 
399;  State  v.  Lovell,  70  Miss.  309;  Wilson  v.  Lucas,  43  Mo.  290;  Pra- 
ttler v.  Hart,  17  Neb.  598;  State  v.  Hadley,  64  N.  H.  473;  Ransom  v. 
Black,  54  N.  J.  L.  446;  People  v.  Bull,  46  N.  Y.  57;  State  v.  Con- 
stantine,  42  Oh.  St.  437;  State  v.  Briggs,  15  R.  I.  425;  Kottman 
v.  Ayer,  3  Strob.  92;  Brewer  v.  Davis,  9  Humph.  208;  Pearson  v. 
Supervisors,  91  Va.  322. 

(169) 


§   47  ADMINISTRATIVE    LAW.  [Qi.  6 

qualifications  for  office.  There  are  some  expedient  nega- 
tive limits.  The  usual  qualifications  for  office  concern 
citizenship,  age,  sex,  or  property.  The  usual  disqualifi- 
cations are,  in  addition,  the  holding  of  another  office  and 
criminal  practices.  The  question  of  the  qualifications 
and  disqualifications  for  office  are  largely  bound  up  in 
the  question  of  appointment  or  election.  The  tendency 
of  the  law  is  to  reduce1  the  qualifications  for  election  to  a 
minimum  and  increase  the  qualifical  ions  for  appointment 
to  a  maximum. 

When  an  office  is  ;m  appointive  one  there  cannot  be 
election  to  it.  A  case  thai  recites  the  elementary  prin- 
ciple is  Stat.-  v.  Eyde,  L21  1ml.  20  I  L889).  Tin-  Legisla- 
ture of  Indiana  established  a  division  of  mineral  oils 
in  the  department  oi  geology,  and  the  office  .if  inspector 
of  mineral  oils  was  established.  The  same  act  which 
constituted  this  department  provided  that  the  general 
assembly,  immediately  after  the  taking  effect  of  it. 
should  elect  a  head  or  the  department,  who  should  ap- 
point a  chief  of  division.  The  constitutionality  of  this 
act  was  attacked  by  these  proceedings  upon  the  ground 
that  this  was  an  encroachment  by  the  legislature  upon 
the  executive. 

Mr.  Justice  BERKSHIRE  hehl  that  it  was:  The  powers 
of  government  under  our  constitution  are  divided  into 
three  separate  departments  the  Legislative,  the  execu- 
tive, ami  the  judicial.  That  the  power  to  appoint  to 
office  is  not  a  Legislative  function  it  seems  there  can  he 
no  question.  Is  it  an  executive  function?  That  the 
power  to  appoint  to  office  is  intrinsically  an  executive 
function  has  been  decided  over  and  over  again.  There- 
fore the  legislature  cannot  do  what  it  has  attempted 
(170) 


Ch.    6]  ITS  MEMBERSHIP.  §    47 

in  this  case :  take  upon  itself  the  appointment  of  a  head 
of  a  department,  as  the  appointment  to  office  is  an  ex- 
ecutive function. 

The  other  side  of  this  question  is  seen  in  Shoemaker 
v.  United  States,  147  U.  S.  282  (1893).  Congress  in 
legislating  for  the  creation  of  a  commission  for  a  park 
provided  that  three  of  the  members  of  it  should  be  ap- 
pointed by  the  President  by  and  with  the  consent  of 
the  Senate,  and  that  two  of  its  members  should  be  two 
existing  officers  of  the  United  States,  already  so  ap- 
pointed. The  question  was  whether  such  organization 
of  such  a  commission  was  constitutional. 

Mr.  Justice  Harlan  disposed  of  this  point  in  this 
manner:  It  is  pointed  to  as  invalidating  the  act  that 
while  Congress  may  create  an  office,  it  cannot  appoint 
the  officer.  As,  however,  the  two  persons  whose  eligi- 
bility is  questioned,  were  at  the  time  of  the  passage  of 
the  act  and  of  their  action  under  it,  already  officers  of 
the  United  States  who  had  been  heretofore  appointed 
by  the  President  and  confirmed  by  the  Senate,  we  do 
not  think  that  because  additional  duties,  germane  to 
the  offices  already  held  by  them,  were  devolved  upon 
them  by  the  act,  it  was  necessary  that  they  should  be 
again  appointed  by  the  President  and  confirmed  by  the 
Senate.  It  cannot  be  doubted  and  it  has  frequently 
been  the  case,  that  Congress  may  increase  the  power 
and  duty  of  an  existing  office  without  thereby  rendering- 
it  necessary  that  the  incumbent  should  be  again  nomi- 
nated and  appointed.36 

se  Election.— Blake  v.  United  States,  103  U.  S.  232;  Ex  parte 
Lusk,  82  Ala.  519;  Wickersham  v.  Brittan,  93  Cal.  37;  State  v. 
Peelle,   124    Ind.    515;    Baltimore   v.    State,    15  Md.   376;    Webber  v. 

(171) 


•g   48  ADMINISTRATIVE    LAW.  [Ch.    6 

§  48.     Appointment. 

The  second  method,  then,  is  appointment.  Certain 
divisions  of  the  subject  must  be  made  at  the  outset.  The 
appointiDg  power  vested  in  the  administration  may  be 
distinguished  as  primary  and  secondary.  The  one  is  the 
power  of  Original  appointment ;  the  other  is  the  power  of 
appointment  to  fill  a  vacancy.  Primary  appointment  is 
the  ordinary  case;  secondary  appointment,  the  extraor- 
dinary case.  A  power  to  appoint  to  an  office  includes 
theoretically  the  power  to  make  the  appointment  in  case 
of  vacancy.  Expediency  has  given  to  the  executive  in 
practice  an  exceptionally  broad  power  of  secondary 
appointment  to  fill  the  vacancies  in  offices  which  were 
originally  filled  by  election.  This  is  very  common  in 
our  public  law.  We  continually  find  the  power  to  fill 
vacancies  for  a  limited  period  or  for  the  rest  of  the 
term  in  offices  falling  vacant  in  which  the  executive 
had  no  power  of  original  appointment,  A  great  deal  of 
public  law  has  grown  up  about  the  word  '•vacancies"'  and 
the  term  "appoint";  and  these  have  received  various 
shades  of  interpretation. 

Again,  the  power  of  appointment  may  be  either  abso- 
lute or  conditional.  If  the  choice  requires  nothing  more 
than  the  commission  of  the  appointing  power  to  make 
it  perfect,  the  appointment  may  be  called  absolute.  If 
there  is  confirmation  or  consent  of  some  other  body 
required  previous  to  a  commission  of  the  appointing 
power,  it  may  be  termed  conditional.  Example  of  the 
former  is  the  power  of  the  President,  to  appoint  to  in- 
ferior office;  and  of  the  latter  is  the  constitutional  re- 
Davis,  5  Allen,  393;  Thomas  v.  Burrus,  23  Miss.  550;  People  v. 
Thomas,  33  Barb.  287;  Haight  v.  Love,  10  Vroom.  14;  Territory 
v.  Ashenfelter,  4  N.  M.  93;  State  v.  McCollister.  11  Oh.  46; 
State  v.  Barber,  4  Wyo.  409. 

('172) 


Cb,.  6]  ITS  MEMBERSHIP.  §  48 

quirement  of  the  advice  and  consent  of  the  Senate  in 
the  larger  executive  appointments. 

Of  whatever  sort,  appointment  is  an  executive  func- 
tion. It  may  be  defined  as  the  act  of  designation  by  the 
executive  of  a  person  to  an  office  in  the  administration. 
In  such  appointment  the  executive  has  an  inherent 
power.  As  the  function  is  executive,  it  is  independent; 
no  dictation  to  the  department  can  be  made  without 
violation  of  the  rule  of  separation  of  powers.  Quali- 
fications upon  the  eligibility  of  officers  niay  be  made, 
but  directions  as  to  the  choice  of  officers  may  not  be 
made.  Since  appointment  is  an  executive  function,  these 
results  follow. 

The  primary  rule  is  that  of  the  previous  case:  that 
the  executive  must  have  the  right  to  appoint  to  an  office. 
The  limitation  upon  that  is  in  the  last  case :  that  the 
legislature  may  prescribe  as  to  the  office  itself.  The  re- 
sult of  the  interaction  of  these  two  principles  upon  each 
other  is  that  the  one  may  prevail,  which  results  in  a  dis- 
cretionary system,  or  the  other  may  prevail,  which 
results  in  a  civil  service  system.  In  the  one  case  the 
appointing  officer  may  designate  whom  he  pleases  upon 
any  basis  of  preference.  In  the  other  case  the  appoint- 
ing officer  is  limited  in  his  choice  to  a  certain  number 
of  men  certified  to  him  upon  some  basis  of  merit. 

The  constitutional  limitations  must  be  observed  in 
any  case.  The  power  of  appointment  conferred  by  the 
constitution  is  a  substantial  and  not  merely  a  nominal 
function,  and  the  judgment  and  will  of  the  constitutional 
depository  of  that  power  should  alone  be  exercised  or 
have  legal  operation  in  filling  offices  created  by  law. 
The  right  of  the  legislature  to  prescribe  qualifications 

(173) 


§   48  ADMINISTRATIVE    LAW.  [Ch.   6 

for  office  is  limited  by  the  necessity  of  leaving  scope  for 
the  judgment  and  will  of  the  person  or  body  in  whom 
the  constitution  vests  the  power  of  appointment.  The 
legislature  cannot  vest  such  appointment  elsewhere  di- 
rectly or  indirectly.  Accordingly,  an  act  requiring  the 
executive  to  appoint  to  office  the  persons  designated  by 
an  examining  board  as  the  fittest  would  be  at  variance 
with  the  constitution,  inasmuch  as  it  would  virtually 
place  the  power  of  appointment  in  that  board.  But. 
although  the  result  of  an  examination  before  such  a 
board  cannot  be  made  legally  conclusive  upon  the  ap- 
pointing power,  against  its  own  judgment  and  will,  yet 
it  may  be  resorted  to  in  order  to  inform  that  power. 
And  notwithstanding  that  the  appointing  power  alone 
can  designate  an  individual  for  an  office,  still,  either 
the  legislature  by  direct  legislation,  or  the  executive  by 
authority  derived  from  the  legislature,  can  prescribe 
qualifications,  and  require  that  the  designation  shall 
be  out  of  a  class  of  persons  ascertained  by  proper  tests 
to  bear  those  qualifications. 

A  provision  invalid  according  to  these  limitations  is 
seen  in  People  v.  Roberts,  lis  X.  V.  360  (1896).  The 
relator  was  appointed  clerk  to  the  collector  of  canal 
statistics  by  the  Superintended  of  Public  Works  upon 
his  own  motion.  When  he  applied  for  his  salary  the 
Comptroller  of  the  state  refused  to  audit  the  same.  The 
ground  of  refusal  was  that  the  relator  was  appointed 
to  the  position  without  having  taken  the  civil  service 
examination,  and.  of  course,  therefore  without  certifi- 
cation of  his  name  by  the  Civil  Set-vice  Commission. 

O'Brien,  for  the  majority  judges,  held:  It  is  quite 
clear  that  the  civil  service  statutes  constitute  a  general 
(174) 


Qh.   6]  ITS   MEMBERSHIP.  §   48 

system  of  statute  law  applicable  to  appointments  in 
every  department  of  the  civil  service  of  the  state.  It  is 
therefore  apparent  that  a  new  principle,  far  reaching  in 
its  scope  and  effect,  has  been  firmly  imbedded  in  the 
constitution.  That  this  must,  if  fairly  and  honestly 
administered,  go  far  to  suppress  very  grave  evils  and 
abuses  that  have  become  peculiarly  rife  and  acute  in  our 
political  system,  no  intelligent  person  who  has  given  the 
matter  much  attention  can  doubt.  Our  conclusion  is 
that,  as  the  commission  had  not  certified  to  this  relator, 
his  appointment  is  invalid. 

A  provision  invalid  according  to  these  limitations  is 
seen  in  Brown  v.  Russell,  1GG  Mass.  14  (1896).  This 
was  a  petition  for  mandamus  to  the  Civil  Service  Com- 
missioners of  Massachusetts  praying  that  they  be  re- 
quired to  restore  the  petitioner  to  the  highest  place  upon 
the  list  of  candidates  eligible  for  certification  and  ap- 
pointment to  a  position  on  the  district  police  for  the 
commonwealth,  a  preference  for  certification  and  ap- 
pointment having  been  given  to  one  Bean  in  conformity 
with  a  statute  of  1895  which  required  that  a  veteran  of 
the  civil  war,  who  should  make  application,  should  be 
certified  first  to  the  Governor,  which  had  the  effect  of 
requiring  the  Governor  to  appoint  him  if  he  appointed 
anybody. 

The  Chief  Justice,  Field,  gave  the  decision  upon  the 
grounds:  We  think  that  it  is  inconsistent  with  the 
nature  of  our  government  and  particularly  with  our 
constitution  that  the  appointing  power  should  be  com- 
pelled by  legislation  to  appoint  to  public  offices  persons 
of  a  certain  class  in  preference  to  all  others  without  the 
exercise  on  its  part  of  any  discretion,  and  without  the 

(175) 


§   49  ADMINISTRATIVE    LAW.  [Ch.    6 

favorable  judgment  of  some  legally  constituted  board 
designated  by  law  to  inquire  and  determine  whether 
the  persons  to  be  appointed  are  actually  qualified  to 
perform  the  duties  which  pertain  to  the  offices.  In  our 
form  of  government  it  is  fundamental  that  public  offices 
are  a  public  trust;  and  that  the  persons  to  be  appointed 
should  be  selected  solely  with  a  view  to  the  public  wel- 
fare. 

This  is  a  period  of  distrust  in  the  free  discretion  of 
the  executive  in  appointment.  The  alternative  is  this 
civil  service  system.  The  civil  service  reform  lias  fought 
its  way  to  recognition.  It  has  passed  through  the  stages 
of,  first,  pass  examinations;  second,  limited  competitive 
examinations;  and  third,  present  form  of  open  competi- 
tive examinations.  Among  those  few  thus  qualified  the 
executive  must  now  choose  most  officers,  except  the  high- 
est. Far  from  perfect  as  the  system  is,  it  is,  on  the 
whole,  the  best  that  has  been  devised.  Administration 
will  be  better  than  ii  ever  has  been,  because  ii  will  be 
a  permanent  provision;  but  in  the  process  the  admin- 
istration may  become  a  bureauocracy;  At  all  events, 
something  of  the  old  will  be  gone  that  was  of  advantage 
together  with  all  thai  was  of  disadvantage.87 

§  49.     Removal  of  officials. 

As  the  selection  for  office  is  different  in  appointment 
and  in  election,  removal  from  office  is  different  in  the 

37  Appointment. — United  States  v.  Perkins,  116  U.  S.  483;  State 
v.  Askew,  48  Ark.  82;  Wickersham  v.  Brittan,  93  Cal.  34;  State 
v.  Dillon,  32  Fla.  545;  Franklin  v.  Kaufman,  65  Ga.  260;  Kreitz 
v.  Behrensnieyer,  149  111.  496;  Boone  Co.  Com'rs  v.  State,  61  Ind. 
379;  Miner  v.  Olin,  159  Mass.  487;  Attorney  General  v.  May,  99  Mich. 
538;  State  v.  Squire,  39  Oh.  St.  197;  DeWalt  v.  Bartley,  146  Pa.  St. 
529;  Flatan  v.  State,  56  Tex.  9S;  Bean  v.  Territory,  3  Wash.  Ter.  129. 

(176) 


Ch.  6]  ITS   MEMBERSHIP.  §   49 

case  of  officers  that  have  been  appointed  and  in  the 
case  of  officers  that  have  been  elected.  If  there  is  one 
single  principle  in  the  whole  question  it  is  this:  that 
the  power  of  selection  and  the  power  of  removal  are  cor- 
relative things.  The  power  that  selects  may  remove.  An 
officer  who  has  appointed  may  dismiss  by  this  rule.  This 
is  the  normal  case ;  there  are  some  few  abnormal  cases. 
So  the  people  who  elect  may  alone  dispose  by  the  same 
rule.  This  is  the  normal  case ;  there  are  some  few  abnor- 
mal cases.  Upon  the  whole,  the  principle  stands  that  the 
power  to  select  involves  the  power  to  remove. 

There  are  two  sorts  of  removal:  first,  arbitrary,  and 
second,  judicial.  The  first  sort  is  the  ordinary  case  in 
centralized  administration.  The  power  of  appointment 
and  the  power  of  dismissal  are  both  inherent  powers  in 
an  executive  department  of  the  centralized  type,  like 
the  administration  of  the  United  States.  Both  the  pow- 
er to  appoint  at  will  and  to  remove  at  will  are  involved 
in  the  conception  of  the  centralized  administration.  On 
the  other  hand,  in  a  decentralized  administration,  like 
that  of  the  states,  as  each  of  the  different  officers  has  his 
own  place  by  election,  any  removal  from  that  position 
by  other  officers  will  be  an  extraordinary  case.  When 
such  a  process  is  provided  it  will  always  be  by  some 
quasi  judicial  method  for  due  cause  shown. 

This  fundamental  difference  between  the  removal  of 
appointive  officers  by  the  mere  motion  of  the  executive- 
and  the  removal  of  elective  officers  by  solemn  adjudi- 
cation of  the  administration,  if  at  all,  is  seen  in  an 
opinion  on  the  Removal  of  Officers,  16  Pa.  Co.  Ct.  305 
(1895).  One  Curley  held  the  elective  office  of  Recorder 
of  Deeds  for  the  City  of  Philadelphia.     He  held  that 

(177) 

Adm.  Law — 12. 


§    49  ADMINISTRATIVE    LAW.  [Ch.   6 

office  by  interim  appointment  from  the  Governor.  The 
question  was  whether  the  Governor  could  remove  him 
■at  pleasure  and  appoint  another  in  his  place.  It  all 
turned  upon  whether  he  was  an  elective  officer  or  an 
appointive  officer. 

The  Attorney-General,  McCormick,  advised  Tin-  Gov- 
ernor: The  officers  provided  by  the  constitution  and 
the  laws  are  either  appointive  or  elective.  As  to  the 
former — except  those  specifically  excepted — there  can  be 
no  doubt  of  the  Governor's  power  to  remove;  as  to  the 
latter — except  those  as  to  whom  specific  provision  is 
niade — the\T  can  be  removed  only  by  impeachment.  Does 
the  present  incumbent  become  an  appointed  officer  with- 
in the  meaning  of  the  constitution,  because  he  was  ap- 
pointed to  fill  a  vacancy  in  an  executive  office?  I  am 
of  the  opinion  thai  the  provision  of  ihe  constitution 
giving  the  power  to  remove  appointed  officers  means 
officers  holding  offices  thai  are  appointive  in  their  char- 
acter and  not  elective.  Otherwise  there  would  be  possi- 
bilities not  contemplated  by  i  he  constitution. 

Of  these  two  forms  of  removal,  arbitrary  motion  is 
the  characteristic  form  in  centralized  administration; 
judicial  amotion  is  the  characteristic  form  in  decen- 
tralized administration.  Instant  dismissal  without  the 
obligation  to  give  reasons  is  the  necessary  situation  in 
centralized  administration;  the  arbitrary  form  of  dis- 
missal prevails  there  because  upon  the  whole  ii  is  ex- 
perience thai  in  no  other  way  can  an  administration  be 
maintained  in  a  high  state  of  efficiency.  Whal  is  indis- 
pensable in  centralized  administration  is  instant  obe- 
dience, which  can  be  enforced  only  by  this  power  of 
instant  removal.  On  the  other  hand,  in  a  decentralized 
<  L78) 


Ch.   6]  ITS  MEMBERSHIP.  §   50 

administration,  removal  for  cause  only  prevails.  It  is 
only  necessary  that  good  behavior  should  be  shown  by 
each  separate  officer.  There  is  no  obedience  required  other 
than  this.  The  quasi  judicial  form  meets  that  situation 
well  enough.38 

§  50.     Arbitrary. 

That  in  a  centralized  administration  the  power  of 
removal  is  involved  was  shown  at  the  beginning  of  the 
working  out  of  the  details  of  the  Federal  administration 
in  a  debate  on  the  Power  of  Removal,  1  Ann.  Cong. 
350  (1789),  in  the  first  session  of  the  first  Congress 
that  met  after  the  adoption  of  the  Constitution.  This 
arose  upon  the  propriety  of  inserting  in  the  statute  es- 
tablishing the  department  of  foreign  affairs  this  clause: 
To  be  removable  by  the  President.  Upon  this  question 
there  was  a  difference  of  opinion  in  the  House  of  Repre- 
ss removal  of  Officers. — Osgood  v.  Nelson,  L.  R.  5  H.  L.  636; 
Hill  v.  Reg.,  8  Moo.  P.  C.  138;  Grant  v.  Secretary,  2  C.  P.  D.  445; 
Hammond  v.  McLay,  28  U.  C.  Q.  B.  463;  Stuart  v.  Gould,  16  N. 
S.  Wales,  132;  Ex  parte  Hennen,  13  Pet.  230;  United  States  v. 
Avery,  Deady  204;  Ledbetter  v.  State,  10  Ala.  241;  Kaufman  v. 
Stone,  25  Ark.  336;  Sponogle  v.  Curnow,  136  Cal.  580;  Trimble  v. 
People,  19  Colo.  187;  Fairfield  Co.  Bar  v.  Taylor,  60  Conn.  11;  Terri- 
tory v.  Cox,  6  Dak.  501;  State  v.  Johnson,  30  Fla.  433;  State  v. 
Frazier,  48  Ga.  137;  Wilcox  v.  People,  90  111.  186;  Carr  v.  State. 
Ill  Ind.  109;  Brown  v.  Duffus,  66  la.  193;  Lynch  v.  Chase,  55 
Kan.  367;  South  v.  Commissioners,  86  Ky.  186;  Andrews  v.  King, 
77  Me.  224;  State  v.  Register,  59  Md.  283;  Williams  v.  Gloucester, 
148  Mass.  256;  Attorney-General  v.  Detroit  Common  Council,  112 
Mich.  145;  State  v.  Peterson,  50  Minn.  239;  Newsom  v.  Cocke,  44 
Miss.  352;  State  v.  Police  Com'rs.  88  Mo.  144;  Quinn  v.  Portsmouth, 
64  N.  H.  324;  Stewart  v.  Freeholders.  61  N.  J.  L.  117;  People  v.  Dal- 
ton,  158  N.  Y.  204;  State  v.  Hawkins,  44  Oh.  St.  98;  Brower  v.  Kant- 
ner,  190  Pa.  St.  182;  Johnson  v.  Hacker,  4  Cold.  431;  Collins  v. 
Tracy,  36  Tex.  547;  Richards  v.  Clarksburg,  30  W.  Va.  491;  State  v. 
Seavey,  7  Wash.  564. 

(179) 


§   50  ADMINISTRATIVE    LAW.  [Ch.   6 

sentatives;  and  later  in  the  Senate  there  was  one  of  the 
closest  of  divisions,  the  Vice-President  casting  the  decid- 
ing vote.  In  the  end  the  bill  passed  without  the  enabling 
clause  upon  the  understanding  that  such  a  clause  was 
unnecessary  because  the  power  belonged  to  the  executive 
without  it. 

In  this  great  debate  Mr.  Madison  is  reported  to  have 
said:  It  is  absolutely  necessary  that  the  President 
should  have  the  power  of  removing  from  offices;  it  will 
make  him  in  a  peculiar  manner  responsible  for  their 
conduct,  and  subject  him  to  impeachment  himself  if 
he  suffers  them  to  perpetrate  with  impunity  high  crimes 
or  misdemeanors  against  the  United  States,  or  neglects 
to  superintend  their  conduct  so  as  to  check  their  ex- 
cesses. Of  the  same  opinion  were  other  members  of  the 
convention  that  framed  the  Constitution.  No  higher  evi- 
dence can  be  had. 

For  three-quarters  of  a  century  Congress  acquiesced 
in  this  arbitrary  power  of  removal  by  the  executive. 
Then  in  1867  the  Tenure  of  Office  Act  was  passed  over 
the  veto  of  the  President.  The  effect  of  that  act  is  seen 
in  the  opinion  concerning  Eollins,  12  Opin.  444  (1868). 
An  officer,  within  the  Tenure  of  Civil  Office  Act,  ten- 
dered in  writing  to  the  President  the  resignation  of  his 
office,  to  take  effect  upon  the  qua  li lira r ion  of  his  suc- 
cessor, nominated  by  the  President  and  confirmed  by 
the  Senate.  When  his  tenure  of  the  office  could  be 
regarded  as  relinquished,  was  the  question.  Upon  the 
event  named  in  his  communication,  was  his  contention; 
but  the  President  wished  to  remove  him  at  once. 

Evakts,  his  Attorney-General,  advised  that  he  could 
not;  the  purpose  of  theTenure  of  Office  Act  was  to  change 
(180) 


Oh.   6]  ITS   MEMBERSHIP.  §   50 

the  doctrine  and  practice  of  the  government,  by  which 
removal  from  office  at  the  mere  discretion  of  the  Presi- 
dent had  been  established  as  a  proper,  and,  as  had  been 
thought,  a  necessary  attendant  of  the  executive  duty 
and  responsibility  under  the  constitution  to  maintain 
the  efficiency  and  fidelity  of  the  public  service  in  ful- 
filling the  manifold  and  incessant  obligations  in  admin- 
istration and  in  execution  of  the  laws.  Mr.  Rollins, 
then,  at  the  date  of  his  letter  to  the  President  was 
entitled  to  hold  the  office  of  Commissioner  of  Internal 
Revenue  until  a  successor  should  have  been  appointed 
by  and  with  the  advice  and  consent  of  the  Senate  and 
should  have  qualified. 

Later  the  Tenure  of  Office  Act  was  in  effect  repealed. 
Just  how  the  matter  stands  in  our  constitutional  law 
today  is  seen  in  Parsons  v.  United  States,  167  U. 
S.  324  (1897).  In  1892  one  Parsons  was  appointed  by 
the  President  and  Senate,  District  Attorney  for  Ala- 
bama for  four  years.  In  1893,  he  was  removed  from 
office  by  the  President  without  explanation.  In  1891, 
he  sued  for  the  balance  of  his  salary  in  the  Court  of 
Claims.  His  contention  was  that  his  commission  gave 
him  his  office  for  four  full  years;  and  that  the  Presi- 
dent had  therefore  no  power  to  remove  him. 

Mr.  Justice  Peckham  said  in  substance:  It  would 
seem  to  be  a  sound  and  necessary  rule  to  consider  the 
power  of  removal  as  incident  to  the  power  of  appoint- 
ment. The  executive  power  which  by  the  Constitution 
is  vested  in  the  President  over  all  officers  appointed 
by  him  makes  their  tenure  no  more  stable  than  his 
pleasure.  We  are  satisfied  that  the  intention  of  Con- 
gress was  to  concede  to  the-  President  the  power  of  re- 

(181) 


§   31  ADMINISTRATIVE    LAW.  [Qh.    6 

moval,  and  to  enable  him  to  remove  an  officer  when  in 
his  discretion  he  regards  it  for  the  public  good,  although 
the  term  of  office  be  fixed.  Upon  the  whole  this  opinion 
is  strong  enough  to  be  authority  against  any  tenure- 
of-office  legislation  henceforth.39 

§  51.     Judicial. 

The  extent  to  which  the  rule  goes  that  requires  ju- 
dicial action  in  removal  from  office  is  seen  in  People  v. 
Treasurer,  36  Mich.  416  (1877).  The  Board  of  Super- 
visors of  a  county  passed  a  resolution  to  remove  tin- 
Overseers  of  the  Poor.  The  statute  fixed  the  terms  of 
these  overseers  at  three  years,  which  time  had  not  half 
run  out  in  this  case.  And  the  provision  for  making 
removal  by  the  supervisors  prescribed  certain  grounds, 
which  were  not  present  in  this  case.  The  supervisor 
had  selected  these  overseers  at  the  outset,  however.  It 
was  claimed,  therefore,  that  the  supervisors  might  at 
any  time  remove  the  overseers  by  virtue  of  that  situa- 
tion. 

The  court — Graves,  J. — laid  down  an  Important  lim- 
itation upon  the  rule  that  a  power  !<•  appoint  involves  a 
power  to  remove:  Our  state  system  favors  appoint- 
ments for  fixed  periods,  and  almost  entirely  rejects  the 
policy  of  removals  at  will,  and  this  rule  of  action  should 

so  AuiuiUAKY. — Eckloff  v.  District,  135  U.  S.  241;  Patton  v.  Vaugh- 
an,  39  Ark.  211;  Sponogle  v.  Curnow,  136  Cal.  580;  Carter  v.  Du- 
rango,  16  Colo.  534;  State  v.  Johnson,  30  Fla.  433;  State  v.  Mitchell, 
50  Kan.  289;  Sanborn  v.  Kimball,  64  Me.  140;  Field  v.  Malster,  88 
Md.  691;  Williams  v.  Gloucester,  148  Mass.  256;  People  v.  Stuart, 
74  Mich.  411;  Parish  v.  St.  Paul,  84  Minn.  426;  State  v.  Cooper, 
53  Miss.  615;  State  v.  Board  of  Lands,  7  Neb.  42;  Weidman  v. 
Board,  7  N.  Y.  Supp.  309;  State  v.  Owen,  125  N.  C.  212;  Field 
v.  Commonwealth,  32  Pa.  St.  478;  Maroney  v.  City  Council,  19 
R.  I.  3;  Keenan  v.  Perry,  24  Tex.  253;  State  v.  Prince,  45  Wis.  610. 

(182) 


Ch.    6]  ITS  MEMBERSHIP.  §   51 

be  observed  in  this  case.  We  have  not  found  any  case 
where  an  officer  who  was  appointed  for  a  fixed  term — 
and  when  the  power  of  removal  wras  not  expressed  and 
declared  by  law  to  be  discretionary — has  been  held  to 
be  removable  except  for  cause;  and  whenever  cause 
must  be  assigned  for  the  removal  of  an  officer  he  is  en- 
titled to  notice  and  to  a  chance  to  defend.  Every  officer 
appointed  for  a  fixed  term  should  be  entitled  to  hold 
his  office  until  the  expiration  of  such  period  unless  re 
moved  therefrom  for  cause  upon  a  fair  trial.  This  is 
the  general  argument  that  is  made  in  the  states  where 
the  administration  is  decentralized. 

Where  the  power  of  removal  is  judicial  the  principal 
issue  is  whether  there  are  sound  reasons  or  not.  A  rep- 
resentative case  on  that  is  Todd  v.  Dunlap,  99  Ky.  449 
(1896).  The  Board  of  Public  Safety  and  the  Board  of 
Public  Works,  executive  boards  of  the  government  of 
the  City  of  Louisville,  instituted  these  actions  in  equity 
in  which  it  was  alleged  that  the  Mayor  and  the  Board 
of  Aldermen  were  about  to  remove  the  members  consti- 
tuting the  two  boards  from  office  without  cause,  and 
the  sole  question  in  each  case  was :  Had  the  Mayor  the 
power,  with  the  approval  of  the  Board  of  Aldermen,  to 
remove  these  officials  without  notice  and  trial  and  with- 
out assigning  any  cause  for  their  action?  The  statute 
law  upon  the  subject  was  to  the  effect  that  the  Mayor, 
giving  his  reasons,  might  remove  with  the  approval  of 
the  Aldermen. 

Chief  Justice  Pryor  held  against  the  Mayor:  These 
officials  having  been  appointed  by  the  Mayor,  it  is  urged 
in  his  behalf  that  any  reason  satisfactory  to  himself 
and  approved  by  the  Board  of  Aldermen  is  a  compliance 
with  the  statute,  and  that  no  limitation  on  this  power 

(183) 


§   52  ADMINISTRATIVE    LAW.  [Ch.    6 

of  removal  exists  when  applied  to  those  officers  holding 
under  his  appointment,  and,  however  competent  and 
faithful  they  may  be  in  the  discharge  of  their  duties, 
their  positions  are  held  at  the  mere  will  of  the  Chief 
Executive.  Bnt  we  think  that  when  the  power  to  re- 
move is  for  reasons  given,  the  legislative  meaning  was  a 
removal  for  cause — for  legal  reasons  based  upon  a  suf- 
ficient cause — and  when  removed  for  reasons  given  or 
for  cause,  the  parties  are  entitled  to  a  hearing  and  to  be 
proceeded  against  in  due  form  upon  charges,  notice,  and 
opportunity  to  be  heard.40 

§  52.     Conclusion. 

The  results  of  the  conditions  related  in  this  chapter 
go  far.     An   administration    in    which    membership   is 

given  by  appointmenl  and  taken  away  at  discretion  is 
one  type.  An  administration  in  which  membership  is 
acquired  by  election  and  lost  only  by  a  judicial  process 
is  another  type.  The  result  in  the  tirst  type  is  central- 
ized administration;  while  in  the  second  type  the  re- 
sult is  decentralized  administration.  As  will  appear  as 
the  discussion  advances,  the  processes  of  centralized  ad- 
ministration are  of  one  sort  ;  the  processes  of  decentraliz- 
ed administrat  ion  are  of  another  sort.  Indeed,  these  two 
types  are  opposites. 

40  Judicial. — Marbury  v.  Madison.  1  Cranch,  137;  State  v.  Hixon, 
27  Ark.  402;  People  v.  Mizner.  7  Cat.  519;  Trimble  v.  People,  19 
Colo.  187;  State  v.  Barbour,  53  Conn.  76;  Queen  v.  Atlanta.  59  Ga. 
318;  State  v.  Chatburn,  63  la.  659;  Todd  v.  Dunlap,  99  Ky.  449; 
Duboc  v.  Voss,  19  La.  Ann.  210;  Townsend  v.  Kurtz.  S3  Md.  331; 
Andrews  v.  King,  77  Me.  224;  Hallgren  v.  Campbell,  82  Mich.  255; 
State  v.  Peterson,  50  Minn.  239;  State  v.  Smith.  35  Neb.  13: 
State  v.  Trenton,  50  N.  J.  L.  338;  Territory  v.  Ashenfelter.  4  N. 
M.  95;  People  v.  Roosevelt,  168  N.  Y.  488;  State  v.  Mitchell.  115 
N.  C.  190;  State  v.  Archibald,  5  N.  D.  359;  Keenan  v.  Perry,  24 
Tex.    253. 

(184) 


CHAPTER  VII. 

THE  ORGANIZATION  OF  THE  ADMINISTRATION. 


53. 

Introduction. 

54. 

External  Divisions. 

55. 

Federal. 

56. 

State. 

57. 

Internal  Subdivisions. 

58. 

Department. 

59. 

Bureau. 

60. 

Division. 

61. 

Conclusion. 

§  53.     Introduction. 

When  many  officers  are  found  in  action  together  the 
law  must  provide  for  their  inter-relation.  Some  officers 
act  in  co-ordination  with  each  other — how  shall  their 
functions  be  divided?  Other  officers  act  in  subordina- 
tion one  to  another — how  shall  their  duties  be  ranked? 
It  is  the  internal  law  of  the  administration  to  a  large 
degree  that  deals  with  these  complex  matters  of  organ- 
ization; and  it  has  to  solve  these  intricate  matters  by 
theories  of  its  own.  These  questions  require  full  dis- 
cussion, which  will  be  had  later  on.  Administrative  law 
has  much  to  do  with  these  questions;  for  it  is  obvious 
that  administration  could  not  proceed  without  rules  of 
law  of  some  sort.  And  without  a  properly  balanced 
organization  an  administration  could  not  go  on. 

What  external  divisions  between  administrations 
themselves  there  shall  be  is  a  question  of  constitutional 
law;  while  what  internal  divisions  there  shall  be  in  an 

(185) 


§   54  ADMINISTRATIVE    LAW.  [(Jn.    7 

administration  is  the  question  in  administrative  law.  At 
the  same  time  no  description  of  the  position  of  the  ad- 
ministration in  the  United  States  can  be  given  unless 
the  general  divisions  between  the  various  administra- 
tions is  exposed  as  the  basis  of  the  general  schemation 
of  the  administration.  These,  then,  are  tin-  principal 
divisions  of  the  problem  of  the  organization  of  the  ad- 
ministration. The  firsl  concerns  the  external  division 
between  administrations;  while  the  second  concerns  the 
internal  sub-divisions  of  the  respective  administrations. 

§  54.     External  sub-divisions. 

In  the  United  States  the  Dumber  of  independent  ad- 
ministrations is  the  greatest  in  the  world.  In  do  other 
nation  is  there  such  division  of  powers  between  the 
various  governments,  and  the  disorganization  <>f  the  ad- 
ministrations is  the  consequence  of  this.  In  the  first 
place  there  is  that  entire  division  between  the  govern- 
ment of  the  I  aited  States  and  the  government  of  the 
states.  This  inevitably  results  in  an  entire  division  be- 
tween the  federal  administration  and  the  state  adminis- 
trations. This  entire  division  between  the  administra- 
tions is  a  necessity  as  a  practical  matter  if  the  theory  of 
che  founders  of  the  federal  nation  is  t<»  be  preserved 
.did  the  relative  independence  of  the  state  and  nation  is 
to  be  maintained. 

But  within  the  administrations  of  tin-  states  them- 
selves there  is  the  saint-  disorganization.  The  central 
administration  in  the  state  has  seldom  any  administra- 
tive relations  with  the  local  administrations  in  the  state. 
The  central  administration  and  the  local  administra- 
tion are  in  the  usual  case  both  elected  by  the  people. 
Each,  therefore,  is  independent  of  the  others  in  ii< 
(186) 


Ch.    7]  ITS  ORGANIZATION.  ^   55 

position.  The  central  administration  cannot  remove  the 
officers  of  the  local  administration  in  any  normal  case. 
Altogether  no  Buch  decentralism  is  known  in  any  other 
nation  as  is  found  in  the  United  States  throughout. 

There  is  but  one  external  division  in  the  federal  ad- 
ministration— that  one  that  divides  it  from  the  admin- 
istrations of  the  states.  Within  itself  the  federal  ad- 
ministration is  a  single  administration.  All  of  its  sub- 
divisions are  internal  ones,  as  is  the  case  in  any  central- 
ized administration;  while  in  any  decentralized  admin- 
istration like  that  of  the  states  the  organization  is  based 
upon  external  division.  That  is  the  fundamental  differ- 
ence between  the  law  of  the  federal  administration,  which 
is  based  upon  administrative  relations,  and  the  admin- 
istrations of  the  state,  which  are  based  upon  legal  rela- 
tions. Thus  the  divisions  of  the  federal  administration 
are  internal,  while  those  of  the  state  administration  are 
external.41 

§  55.     Federal. 

The  national  administration  in  the  United  States 
constitutes  a  complete  system,  separate  altogether  from 
the  state  administration.  This  is  not  indispensable  in 
a  federal  government.     In  some  such  governments  the 

■ii  External  Subdivisions. — Tennessee  v.  Davis,  100  U.  S.  257; 
Ex  parte  Siebold,  100  U.  S.  371;  In  re  Neagle,  135  U.  S.  1;  Ohio 
v.  Thomas,  173  U.  S.  284;  In  re  Beine,  42  Fed.  546;  Campbell  v. 
Waite,  88  Fed.  106;  Ex  parte  Wiley,  54  Ala.  226;  Hathcote  v.  State,. 
55  Ark.  183;  People  v.  Whitman,  10  Cal.  38;  People  v.  Curley,  5 
Colo.  412;  State  v.  Hocker,  39  Fla,  477;  Mehringer  v.  State,  20  Ind. 
103;  State  v.  Waite,  101  la.  380;  State  v.  Lamantia,  33  La.  Ann. 
446;  Melcher  v.  Boston,  9  Met.  75;  Fuller  v.  Ellis,  98  Mich.  96; 
State  v.  Kiichli,  53  Minn.  147;  People  v.  Hurlbut,  24  Mich.  44; 
Oliver  v.  Jersey  City,  63  N.  J.  L.  96;  State  v.  Clarke,  3  Nev.  566; 
De  Turk  v.  Commonwealth,  129  Pa.  St.  151;  In  re  Corliss,  11  R. 
I.  638;  State  v.  Buttz,  9  S.  C.  156;  McGregor  v.  Balch,  14  Vt.  428. 

(187) 


§   55  ADMINISTRATIVE    LAW.  [Ch.   7 

officers  of  the  states  do  work  for  the  federation.  There 
is  no  snch  situation  in  the  United  States;  indeed,  no 
officer  of  the  state  as  an  officer  of  the  state  has  functions 
to  perform  for  the  United  States  by  virtue  of  that  po- 
sition, so  separate  are  these  administrations  in  point  of 
law. 

One  case  will  be  enough  to  show  that  division — 
Judge  Handlin,  11  Opin.  116  (1861).  The  gist  of  the 
complaint  of  this  Judge  Handlin  was  that  Governor 
Hahn  of  Louisiana  had  treated  him  unjustly  in  removing 
him  from  office  without  cause.  In  his  letter  to  the  Pres- 
ident of  the  United  States  he  said:  Governor  Hahn 
had  no  power  to  take  the  step  he  did;  he  could  have  no 
power  then,  except  he  derived  it  from  you,  the  President. 
The  President  asked  the  Attorney-General  whether  he 
had  any  power  to  interfere  in  the  controversy. 

Attorney-General  Bates  said :  I  do  not  perceive  that 
the  President  has  any  power  to  interfere  between  the 
conflicting  officials  of  the  same  state  government.  He 
is  not  the  judge  of  the  officers  of  the  state.  If,  as  Mr. 
Handlin  affirms,  the  Governor  had  no  power  under  the 
state  constitution  to  remove  him  from  office  and  vacate 
his  commission,  the  state  judiciary  alone  has  power  to 
bear  and  determine  the  question  of  right ;  and  if  they 
find  the  Governor  in  the  wrong,  and  the  judge  in  the 
right,  they  will  doubtless  be  able  to  protect  the  judge 
in  the  enjoyment  of  his  office,  and  in  the  legal  exercise 
of  his  legitimate  functions.  I  think  it  is  a  matter  which 
belongs  entirely  to  the  state  of  Louisiana,  and  that  the 
President  has  no  legal  authority  in  the  premises. 

The  division  between  the  two  administrations  is  more 
than  a  matter  of  law,  however;  it  is  a  matter  of  fact,  as 
(188) 


Ch.    7]  ITS  ORGANIZATION.  §   55, 

well.  Not  only  have  the  state  officers  as  officers  no 
function  in  the  national  administration,  but  the  state 
officers  as  persons  are  as  a  matter  of  universal  practice 
not  made  officers  of  the  national  administration.  This 
depends  largely  upon  the  executive  order  in  the  national 
administration  which  declares  in  effect  that  acceptance 
by  a  national  officer  of  an  office  under  a  state  will  in 
usual  cases  be  considered  a  resignation  by  such  officer 
of  his  appointment  in  the  service  of  the  United  States. 
The  effect  of  this  is  discussed  in  the  Incompatibility 
Case,  4  Lawrence,  4S6  (1883). 

In  his  general  discussion  of  this  matter  Lawrence. 
the  Comptroller,  said :  Such  acceptance  does  not  ipso 
facto  divest  the  national  officer  of  the  title  to  his  office 
under  the  United  States,  but  subjects  such  officer  to 
removal  in  the  discretion  of  the  proper  authority.  Each 
state  can  prescribe  the  qualifications  of  its  own  officers, 
but  not  those  of  national  officers.  Congress  can  pre- 
scribe the  qualifications  generally  of  national  officers, 
but  not  of  state  officers.  On  principles  of  constitutional 
law  inherent  in  the  structure  of  the  dual  system  of 
national  and  state  governments  in  the  United  States, 
and  without  any  express  provision  on  the  subject,  it  is 
possible  that  there  may  be  incompatibility  in  law,  how- 
ever. It  will  be  seen,  therefore,  that  as  a  matter  of  fact 
the  division  between  the  administration  of  the  United 
States  and  the  administrations  of  the  states  is  com- 
plete.42 

*'-  Federal.— Dobbins  v.  Erie  Co.  Com'rs,  16  Pet.  435;  Collector  v. 
Day,  11  Wall.  113;  In  re  Lee,  46  Fed.  61;  Wood  v.  Drake,  70  Fed.  881; 
In  re  Strawbridge,  39  Ala.  387;  Hollingsworth  v.  State,  111  Ind. 
289;  Melcber  v.  Boston,  9  Met.  75;  Fuller  v.  Ellis,  98  Mich.  96; 
Oliver  v.  Jersey  City,  63  N.  J.  L.  96;  In  re  Treasurers'  Appointment, 

(189> 


§   56  ADMINISTRATIVE    LAW.  [Ch.   7 

§  56.     State. 

In  each  state  of  the  United  States  there  are  three 
grades  of  administration.  The  administration  of  the 
state,  the  administration  of  the  county,  and  the  adminis- 
tration of  the  local  body — these  three.  This  is  so  be- 
cause the  goyernmental  organization  of  necessity  deter- 
mines the  external  diyision  of  the  administrative  organ- 
ization. These  three  degrees  of  government,  each  in 
action  independent  of  the  other,  make  up  a  condition 
of  disorganization  in  government  unknown  elsewhere. 
What  is  back  of  this  is  the  institutional  theory  held  by 
the  majority  of  people  in  the  United  States.  Local  self- 
government  is  not  a  legal  principle,  it  is  true;  but  it  is 
an  accepted  policy,  at  all  events. 

The  state  administration  is  not  central,  in  truth,  for 
it  has  no  administrative  relations  with  the  county  ad- 
ministration; the  county  administration  is  not  the  su- 
perior of  the  local  administration  in  any  proper  sense. 
for  it  has  no  control  over  it.  Bence,  the  only  relations 
that  there  may  be  between  the  administrations  in  tin- 
states  are  legal,  not  administrative.  After  all,  these 
external  divisions  depend  upon  the  general  constitu- 
tional structure  within  the  state.  Although  this  leads 
the  discussion  outside  of  our  topic  it  is  perhaps  neces- 
sary to  sketch  these  divisions. 

In  the  central  administration,  a  Governor  is  found  as 
the  chief  executive  in  all  the  states;  in  a  few  instances 
there  is  an  executive  council  to  advise  the  Governor. 
Next  in  grade  are  the  heads  of  the  executive  depart- 
ment; these  are  in  part  single-headed,  in  part  headed 

5  Kulp.  98;   State  v.  Buttz,  9  S.  C.  156;  Calloway  v.  Sturm,  1  Heisk. 
764;   McGregor  v.  Balch,  14  Vt.  428. 

(190) 


Ch.    7]  ITS  ORGANIZATION.  §    56 

by  boards.  Next  are  various  officers  scattered  about  the 
state  who  exercise  functions  by  direct  commission  from 
the  state.  Altogether,  the  number  of  officers  thus  in  the 
service  of  the  state  administration  is  not  infrequently  the 
lowest.  That  is  because  the  work  done  by  the  state  in 
the  normal  case  is  least.  The  central  administration 
plays  the  smallest  part  in  the  government,  as  it  touches 
the  ordinary  citizen  seldom. 

Local  organization  in  the  United  States  may  be  di- 
vided into  three  classes,  which  division  turns  upon 
whether  the  county  or  the  town  is  given  the  most  prom- 
inence in  government.  The  division  was  largely  his- 
torical, and  this  matter  still  remains  a  local  question, 
therefore.  In  New  England  the  township  system  gives 
the  preponderance  to  the  locality.  In  the  south  the 
county  system  gives  most  of  the  functions  of  the  gov- 
ernment over  to  the  county.  In  the  middle  states  there 
is  a  system  which  dates  to  the  Duke  of  York  between 
these  two  extremes.  In  the  west  there  is  no  regular 
system,  all  of  the  three  just  mentioned  being  found.  In 
every  system  of  local  government  both  the  county  and 
the  locality  exist. 

Whatever  the  type  of  organization,  the  administra- 
tions are  independent,  as  they  consist  always  of  separate 
elective  officers.  There  is  some  qualification  of  this 
statement  necessary  in  dealing  with  the  relations  be- 
tween the  township  and  the  county.  If  the  county  of- 
ficers are  elected  directly  by  the  people  without  reference 
to  the  township,  we  have  the  commissioner  system.  And 
if  the  township  organization  is  represented  in  the  county 
organization  by  some  officers  from  it,  we  have  the  super- 
visor system.  The  commissioner  system  prevails  in  most 

(191) 


§   57  ADMINISTRATIVE    LAW.  [Ch.    7 

states;  under  that  there  is  direct  election  of  the  county 
officers  by  the  voters  of  the  county.  The  supervisor  sys- 
tem is,  however,  spreading;  for  the  intimate  connection 
between  the  local  governments  under  this  system  has 
been  well  liked.  The  usual  form  of  this  organization 
is  that  the  chief  executive  officer  of  the  local  body  is  a 
member  of  the  county  board. 

In  local  administration  the  variety  is  so  great  as  to 
defy  an  accurate  statement  in  brief  form.  An  obvious 
distinction,  indeed,  may  be  made  between  the  rural  lo- 
calities which  are  unincorporated,  and  the  civic  locali- 
ties which  are  incorporated.  That  difference,  of  much 
importance  in  law,  is  of  the  same  importance  in 
the  actual  business  of  administration.  In  truth  the  real 
distinction  is  that  in  rural  administration  the  work  is 
so  small  that  almost  any  arrangement  will  meet  with 
moderate  success;  while  in  civic  administration  the 
work  is  so  large  that  not  even  the  best  organization  of 
the  administration  lias  proved  to  be  a  conspicuous  suc- 
cess.43 

§  57.     Internal  sub-divisions. 

The  proper  questions  of  the  law  governing  adminis- 
tration begin  with  the  problems  as  to  the  inner  organi- 
zation.   An  explanation  of  this  highly  complex  organism 

*■•  State.— Baker  v.  Grice,  169  U.  S.  284;  Ex  parte  Wiley,  54  Ala. 
226;  People  v.  Whitman,  10  Cal.  38;  People  v.  Curley,  5  Colo.  412; 
Perkins  v.  New  Haven,  53  Conn.  215;  State  v.  Hocker,  39  Fla.  477; 
Foltz  v.  Kerlin,  105  Ind.  221;  State  v.  Waite,  101  la.  380;  State 
v.  Gilmore,  20  Kan.  551;  State  v.  Lamantia,  33  La.  Ann.  446;  People 
v.  Hurlbut,  24  Mich.  44;  Lindsey  v.  Attorney-General,  33  Miss.  508; 
State  v.  Dillon,  90  Mo.  229;  State  v.  Clarke,  21  Nev.  333;  Taggart 
v.  Commonwealth,  102  Pa.  St.  354;  State  v.  Glenn,  7  Heisk.  472: 
Day  L.  &  C.  Co.  v.  State,  68  Tex.  526;  McGregor  v.  Balch,  14  Vt.  429; 
Burch  v.  Hardwicke,  30  Grat.  24. 
(192) 


Ch.   7]  ITS  ORGANIZATION.  ^   57 

may  be  helped  by  a  biological  analogy.  In  any  govern- 
ment its  organs  correspond  in  some  degree  to  the  func- 
tions required  of  it.  Indeed,  the  differentiation  therein 
is  no  more  than  a  matter  of  functional  adaptation.  Such 
specialization  results  in  efficiency.  At  bottom  it  seems 
that  the  division  in  the  agencies  of  administration  is 
dictated  by  law  inherent  in  all  growth ;  as  it  is  an  inter- 
nal reflection  of  external  environment.  In  other  words, 
make  this  the  first  question :  what  has  the  administra- 
tion to  do;  that  will  answer  the  second  question:  what 
departments  of  government  are  there? 

The  principle  in  organization  is  system.  Organization 
requires  system  in  the  proper  co-ordination  of  officers. 
For  this  all  officers  upon  the  same  grade  must  be  so 
assigned  that  some  are  at  one  work,  others  at  another 
work.  Organization  requires  system  also  in  the  prop- 
er subordination  of  officers  for  direction.  To  make  this 
out  to  its  full  extent  each  officer  should  be  under  his 
chief,  their  chiefs  under  another  chief,  this  chief  under 
the  head  of  the  chief  executive  himself.  In  any  admin- 
istration these  forms  will  be  preserved  to  a  greater  or 
to  a  lesser  extent.  For,  indeed,  some  such  arrangement 
is  involved  in  any  organization  whatsoever. 

In  usual  organization  there  is  thus  built  up  this  articu- 
lated body.  The  object  of  this  organism  is  to  produce 
definite  action.  To  this  end  there  is  specialization  in 
the  separate  officers,  so  that  there  may  be  equipment  for 
action.  To  this  end,  also,  there  is  this  organization  of 
these  officers  into  a  whole,  so  that  there  may  be  direction, 
in  action.  The  purpose  in  administration  is  the  en- 
forcement of  the  law ;  and  this  can  only  be  accomplished 
through  the  process  of  an  administration  that  is  organ- 

(193) 

Adm.  Law — 13. 


§   58  ADMINISTRATIVE    LAW.  [Ch.    7 

ized  upon  definite  lines  to  that  end.  All  this  is  said  in 
a  clear  exposition  of  The  Duties  of  the  Attorney-General, 
6  Opin.  346  (1854). 

Attorney-General  Gushing  said  in  part:  The  organ- 
ization of  the  executive  departments  of  the  administra- 
tion implies  order,  correspondence,  and  combination  of 
parts,  classification  of  duties — in  a  word,  system  :  other- 
wise there  is  waste  and  loss  of  power,  or  conflict  of 
power,  either  of  which  is  contrary  to  the  public  service, 
which  has  a  regard  of  so  much  work  to  be  done  by  such 
persons  at  a  given  cosl  of  either  time  or  money.  Be- 
sides which,  in  a  political  relation,  want  of  due  arrange- 
ment of  public  functionaries  and  their  functions  is  want 
of  due  responsibility  to  society  and  to  law.  Accordingly, 
it  has  been  the  general  purpose  of  ( Jongress,  at  all  times, 
both  as  to  the  great  subdivision  of  departments  and 
the  arrangements  of  the  duties  of  each,  to  classify  and 
systematize." 

§  58.     Department. 

An  administration  is  a  hierarchy.  In  the  typical  ad- 
ministration the  department  is  the  largest  division. 
How  many  departments  there  shall  be  is  a  question; 
in  some  governments  there  are  more,  in  seme  less.  It 
is  all  as  the  need  is  in  any  case.  As  the  amount  of 
things  done  by  a  government  increases,  the  number  of 
its  principal   departments  will    increase   by  division  of 

**  Internal  Subdivisions. — Fox  v.  McDonald,  loi  Ala.  51;  Ex 
parte  Allis,  12  Ark.  101;  People  v.  Turner.  20  Cal.  142;  Bunn  v. 
People,  45  111.  397;  State  v.  Board  of  Liquidation,  42  La.  Ann. 
647;  Thomas  v.  Owens.  4  Md.  189;  Lindsey  v.  Attorney-General.  4 
George,  508;  Cotton  v.  Phillips,  56  N.  H.  220;  People  v.  Schoon- 
maker,  13  N.  Y.  238;  State  v.  Weston,  4  Neb.  234;  State  v.  Brown, 
5  R.  I.  1;  State  v.  Hastings,  10  Wis.  525. 
(194) 


Ch.    7]  ITS  ORGANIZATION.  §   53 

the  business  of  one  old  department  between  two  new 
departments.  Moreover,  if  wholly  nevr  powers  are  as- 
signed to  a  government  a  new  department  will  be  re- 
quired. Organization,  as  has  been  remarked  before,  is 
a  reflection  of  the  activities  of  a  government. 

The  growth  of  the  departments  can  be  traced  with 
great  ease  in  some  such  public  document  as  the  Report 
of  the  Dockery  Commission,  53  Cong.  2nd  Hess.  House 
Rep.  49  (1893).  The  first  thing  to  be  noted  in  that 
report  is  the  original  organization  of  the  executive  de- 
partments. There  were  four  at  first :  the  Department 
of  State  for  political  and  foreign  affairs;  the  Depart- 
ment of  War  for  military  and  naval  affairs;  the  Depart- 
ment of  Treasury  for  collection  and  disbursement;  and 
the  Department  of  Justice  for  legal  and  judicial  mat- 
ters. The  next  step  was  the  separation  of  a  Department 
of  Navy;  the  next  the  creation  of  a  Department  of  In- 
terior ;  the  next  the  promotion  of  the  office  of  Postmaster- 
General  ;  the  next  the  invention  of  a  Department  of 
Agriculture;  the  last  the  provision  for  a  Department 
of  Commerce.  All  this  is  a  growth  upon  the  lines  indi- 
cated. 

This  is  not  quite  the  whole  story.  These  nine  depart- 
ments do  not  include  every  officer  of  the  United  States; 
there  are  some  few  unattached  officers.  This  situation 
becomes  of  some  importance  at  times.  For  example,  it 
came  to  light  in  the  opinion  on  the  Civil  Service  Com- 
mission, 22  Opin.  62  (1898).  This  was  a  request  for 
an  opinion  upon  the  question  whether  an  act  which 
required  all  clerks  in  all  executive  departments  to  work 
not  less  than  seven  hours  applied  to  the  clerks  of  the 
Civil  Service  Commission.     It  must  be  obvious  that,  in 

(195) 


§   58  ADMINISTRATIVE    LAW.  [Ch.     7 

an  exceptional  office  with  exceptional  duties  pertaining 
to  all  the  departments,  it  would  be  best  if  it  need  not 
be  placed  within  the  regular  organization. 

Attorney-General  Griggs  advised  that  the  case  did  not 
apply:  No  board,  commission,  bureau,  or  office  which 
is  not  expressly  or  by  implication  under  the  control  of 
one  of  the  chief  executive  departments  can  be  considered 
as  belonging  to  an  executive  department.  There  is  noth- 
ing in  the  act  constituting  the  Civil  Service  Commission 
which  makes  it  subject  to  any  regulation  or  control 
except  that  of  the  President  himself.  It  follows  there- 
fore that  when  an  act  of  Congress  refers  to  the  execu- 
tive department  it  does  not  embrace  and  cannot  properly 
be  applied  to  any  branch  office  or  bureau  which  is  not 
under  the  control  of  one  of  the  executive  departments 
presided  over  by  a  cabinet  officer. 

The  departments,  then,  are  those  offices  which  are 
headed  by  the  cabinet  officers.  In  the  American  system 
of  government  the  high  political  officers  are  also  the 
actual  working  heads  of  the  administrative  department. 
Modern  constitutional  government  has  found  by  expe- 
rience that  whenever  a  gap  exists  between  the  chief 
officers  of  the  state  and  the  heads  of  the  administrative 
departments  that  the  administration  suffers  by  this  lapse. 
Because,  after  all,  in  the  larger  matters,  questions  of  ad- 
ministration cannot  be  separated  from  questions  of 
politics.45 

45  Department. — Attorney-General,  6  Opin.  346;  Civil  Service  Com- 
mission, 22  Opin.  62;  State  v.  Hutt,  2  Ark.  282;  Love  v.  Baehr, 
47  Cal.  364;  In  re  House  Bill,  21  Colo.  32;  State  v.  Keena,  64  Conn. 
215;  State  v.  Bloxham,  26  Fla.  407;  Julian  v.  State,  122  Ind.  68; 
Bryan  v.  Cattell,  15  la.  538;  State  v.  Nield,  4  Kan.  App.  626;  State 
v.   Mason,  43   La.  Ann.  590;    Scharf  v.  Tasker,  73  Md.  378;    In  re 

(196) 


Ch.    7]  ITS  ORGANIZATION.  g    59 

§  59.     Bureau. 

In  the  typical  administration  the  next  largest  division 
is  the  bureau.  How  many  bureaus  there  shall  be  is 
again  a  question  of  how  many  things  that  department 
is  assigned  to  do.  The  designation  of  the  work  to  each 
bureau  on  the  whole  goes  upon  the  lines  of  specializa- 
tion. In  a  large  way  this  question  of  the  determination 
of  the  organization,  as  has  been  pointed  out,  is  a  legis- 
lative question,  not  an  administrative  question. 

One  case  is  enough  to  show  that  situation — Militia 
Bureau,  10  Opin.  11  (1861).  The  question  submitted  to 
the  Attorney- General  was  as  to  the  propriety  of  a  pro- 
posed order  detailing  Lieutenant  Ellsworth  of  the  first 
dragoons  for  special  duty  as  inspector  general  of  militia 
for  the  United  States,  charging  him  with  the  transaction, 
under  the  direction  of  the  Secretary  of  War,  of  all  busi- 
ness pertaining  to  the  militia,  to  be  conducted  as  a  sepa- 
rate bureau,  of  which  it  was  proposed  to  make  Lieuten- 
ant Ellsworth  the  chief.  There  had  been  no  legislation 
upon  this  bureau,  which  it  was  proposed  to  establish  by 
an  executive  order. 

The  advice  of  Attorney-General  Bates  was:  It  pro- 
poses the  establishment  of  a  bureau  heretofore  unknown 
in  the  organization  of  the  War  Department.  That  de- 
partment is  divided  into  a  number  of  subordinate  di- 
visions, as  the  quarter-masters,  the  commissariat,  the 
pay-masters,  the  ordnance,  the  engineers,  and  the  medi- 
cal, all  of  which  are  created  and  their  respective  duties 
defined  by  legislative  enactment.  Some  of  them  are 
called  bureaus  and  in  some  the  duties  are  subdivided 

State  House  Commission,  19  R.  I.  390;  Territory  v.  Stokes,  2  N.  M. 
63;  State  v.  Hastings,  10  Wis.  525. 

(197) 


§   59  ADMINISTRATIVE    LAW.  [Ch.    7 

into  divisions;  but  all  are  established  to  perform  duties 
especially  authorized  by  law.  The  same  remark  is  true  of 
the  bureaus  in  the  other  departments  of  the  government, 
as  will  be  seen  by  reference  to  the  acts  creating  them. 
In  view  of  these  precedents,  I  cannot  avoid  the  conclu- 
sion that  the  creation  of  a  bureau  in  the  War  Depart- 
ment can  only  be  authorized  by  an  act  of  Congress  desig- 
nating its  chief,  defining  his  duties,  and  providing  for 
the  appointment  of  the  necessary  clerical  force. 

The  situation  will  be  made  clear  by  a  few  illustrations 
taken  at  random  of  this  subdivision  of  the  department 
into  bureaus.  A  recent  public  document  entitled  Ex- 
ecutive Departments  at  Washington  (1893),  is  the  au- 
thority. Bureaus  are  not  always  so  denominated ;  some- 
times the  name  is  office,  sometimes  commission.  But  in 
any  administration  organized  upon  any  systematic  ar- 
rangement there  must  be  these  increasing  subdivisions, 
each  included  in  the  one  above  it.  each  including  the  ones 
below  it.     The  nomenclature  is  unimportant. 

Thus,  in  the  Treasury  Department  the  next  subdi- 
vision in  order  is  into:  tirsr.  mint;  second,  inspector  of 
vessels;  third,  statistics;  fourth,  life  saving  service; 
fifth,  lighthouse  board:  sixth,  supervising  architects; 
seventh,  comptroller ;  eighth,  currency;  ninth,  commis- 
sioner of  customs;  tenth,  auditor;  eleventh,  treasurer; 
twelfth,  register;  thirteenth,  internal  revenue;  four- 
teenth, navigation;  fifteenth,  coast  survey;  sixteenth. 
engraving.  This  is  a  long  list.  And  yet  the  possibilities 
for  orderly  administration  must  be  apparent  even  upon 
a  cursory  examination. 

Again  in  the  Department  of  the  Interior  the  bureaus 
(198) 


Ch.    7]  ITS  ORGANIZATION.  §   60 

are:  first,  land  office;  second,  Indian  affairs;  third,  pen- 
sions; fourth,  patents;  fifth,  education;  sixth,  railroad; 
seventh,  geological  survey;  eighth,  census.  These  inter- 
ests, after  all,  may  well  enough  fall  within  the  Depart- 
ment of  the  Interior,  since  they  are  internal  affairs.  And 
yet  obviously  so  diverse  are  they  that  it  will  be  impos- 
sible to  expect  proper  administration  if  they  were  un- 
distributed. It  is  only  by  division  that  administration 
is  possible.46 

§  60.     Division. 

In  the  typical  administration  the  last  principal  unit 
is  the  division.  The  administration  is  divided  into  de- 
partments; the  departments  are  divided  into  bureaus; 
the  bureaus  are  divided  into  divisions;  and  the  divisions 
are  usually  made  up  of  single  officers.  This  is  the  whole 
scheme  of  the  construction  of  an  administration  from 
top  to  bottom.  To  repeat,  an  administration  is  a  hier- 
archy. 

At  about  this  stage  the  conditions  are  such  that  the 
administration  may  take  a  part  in  the  organization. 
This  is  seen  in  the  Employment  of  Clerks,  2  Compt.  Dec. 
173  (1895).  This  was  an  application  for  a  construction 
of  that  portion  of  the  act  of  March  2nd,  1895,  providing 
for  the  preparation,  printing  and  publication  of  bulle- 
tins for  farmers.  The  question  was  whether  the  statu- 
tory roll  of  employee  in  the  seed  division  of  the  Agri- 
cultural Department  might  be  employed  in  mailing  and 

«  Bureau. — Masters'  Clerk's  Case,  1  Phillips,  050 ;  Hydrometer 
Case,  6  Lawrence  128;  Woods  v.  Gary,  25  Wash.  L.  R.  591;  Peo- 
ple v.  Auditor,  2  Colo.  97;  Baker  v.  Kirk,  33  Ind.  517;  People 
v.  Woodruff,  32  N.  Y.  355. 

(199) 


§   fO  ADMINISTRATIVE    LAW.  [Ch.   7 

addressing  these  bulletins;  and   whether  the  chief  of 
that  division  might  be  legally  so  employed. 

The  Comptroller,  Bowler,  ruled  that  this  might  be 
done:  The  appropriation  contained  in  the  act  provides 
for  a  chief  and  certain  clerks  and  employees  of  the  di- 
vision of  seeds,  a  sufficient  sum  being  appropriated  to 
pay  their  salaries.  Under  this  appropriation  the  ap- 
pointment and  retention  of  this  chief  and  these  clerks 
and  employees  is  authorized  for  the  current  fiscal  year. 
And  the  method  of  their  employment  rests  wholly  within 
your  executive  discretion. 

When  this  stage  in  administration  is  reached  the  prin- 
ciple upon  which  organization  shall  be  based  is  not  so 
apparent.  If  there  is  a  variety  of  work  to  be  done  the 
organization  proceeds  as  before  along  the  most  useful 
line  of  co-operation  for  that  ease — specialization.  If, 
however,  there  is  much  work  to  he  done  of  the  same  sort, 
the  organization  proceeds  along  the  most  useful  lines 
of  co-operation  for  that  case — division.  An  example  of 
each  of  these  forms  of  the  separation  of  division  in  a 
bureau  will  make  this  situation  plain. 

The  most  extreme  form  of  organization  upon  the  basis 
of  specialization  is  seen  in  the  Patent  Office.  The  divi- 
sions there  by  their  numbers  are  as  follows :  1,  Tillage ;  2, 
farm;  3,  metallurgy:  1.  engineering;  5,  finance;  6,  chem- 
istry ;  7,  games ;  8,  furniture ;  9,  hydraulics ;  10,  wagons ; 
11,  boots;  12,  mechanics;  13,  arms;  14,  apparatus;  15, 
paper;  16,  telegraph;  17,  printing;  18,  steam;  10,  fur- 
naces; 20,  hardware;  21,  textiles;  22,  navigation;  23 
instruments;  24,  machine;  25,  mills;  2G,  electricity;  27, 
brushes;  28,  pneumatics;  29,  turning;  30,  lamps;  31, 
gas;  32,  advertising.  The  purpose  in  this  organization 
is  apparent. 
(200) 


(Jh.   7]  ITS  ORGANIZATION.  §    61 

On  the  other  hand,  the  most  extreme  form  of  the  or- 
ganization for  division  upon  the  basis  of  simple  distri- 
bution is  seen  in  the  adjudicating  offices  of  the  Pension 
Bureau.  There  the  division  is  outright  according  to 
the  locality  from  which  the  applications  come.  The 
different  states  in  the  United  States  are  distributed  into 
four  classes :  1,  Eastern ;  2,  Middle ;  3,  Western ;  4,  South- 
ern. The  necessity  of  this  is  obvious.  There  is  so  much 
work  of  the  same  sort  to  do  that  it  can  be  disposed  of 
only  by  simple  division.  The  principal  reason  in  the 
creation  of  these  separate  divisions  is  so  that  there  may 
be  more  immediate  superintendence.47 

§  61.     Conclusion. 

The  object  in  the  construction  of  so  elaborate  a  hier- 
archy must  be  plain.  It  is  to  create  the  possibility  for 
precise  action  by  the  officers  detailed  to  do  the  final  act. 
This  is  brought  about  by  the  two  methods  of  division 
upon  the  lines  of  specialization.  And  it  is  to  create  the 
conditions  for  effective  superintendence  that  chiefs  are 
put  over  chiefs  in  this  way.  In  fine,  both  co-ordination 
of  officers  upon  the  same  plane  and  subordination  of 
officers  upon  different  grades  are  the  chief  principles 
in  the  law  governing  the  organization  of  the  adminis- 
tration. 

*7  Division. — Departmental  Clerks,  21  Opin.  355;  Departmental 
Clerks,  1  Comp.  Dec.  4;  State  v.  Feibleman,  28  Ark.  424;  Denver  v. 
Dean,  10  Colo.  375;  State  v.  Mayne,  68  Ind.  285;  State  v.  Bloxham, 
33  Fla.  482;  Lewis  v.  Wall,  70  Ga.  646;  Abry  v.  Gray,  58  Kan.  149; 
Newman  v.  Elam,  30  Miss.  507. 

(201) 


CHAPTER  VIII. 

THE  THEORY  OF  ADMINISTRATION. 


62. 

Introduction. 

63. 

Centralized  Administration. 

64. 

Interdependence. 

65. 

Superior. 

66. 

Inferior. 

67. 

Decentralized  Administration 

68. 

Independence. 

69. 

Lower. 

70. 

Higher. 

71. 

Conclusion. 

§  62.     Introduction. 

There  arc  two  systems  of  administration:  first,  cen- 
tralized administration,  and  second,  decentralized  ad- 
ministration. In  centralized  administration  there  is 
centra]  direction;  in  decentralized  administration  there 
is  no  central  direction;  while  in  centralized  administra- 
tion there  is  one  head,  in  decentralized  administration 
there  are  various  heads.  Indeed,  in  centralized  admin- 
istration all  the  functions  of  administration  are  con- 
ceived of  as  in  the  head  of  the  administration  and  every- 
thing is  held  to  be  done  under  his  direction;  so  that  in  a 
centralized  system  every  officer  is  inferior  to  some  of- 
ficer and  superior  to  some  other  officer  in  turn.  Whereas, 
in  a  decentralized  administration  the  conception  is  that 
each  officer  has  his  own  functions  vested  in  him,  and 
that  in  consequence  everything:  is  held  to  be  done  of  his 
own  motion.  It  results  that  in  a  decentralized  system 
all  officers  are  equal  and  in  the  exercise  of  their  functions 
(202) 


Ch.    8J  THEORY  OF  ADMINISTRATION.  §   62 

each  is  independent.  Interdependence  is  the  theory  of 
centralism,  on  the  other  hand. 

This  statement  is  too  much  of  an  abstraction,  perhaps, 
to  meet  actual  conditions  in  government.  Xo  adminis- 
tration exists  which  is  complete  in  its  centralism,  still 
less  is  any  administration  known  which  is  absolute  in 
its  decentralism.  It  is  plain  that  no  administration 
could  act  which  was  so  integrated  that  there  was  no  dis- 
cretion in  any  of  its  members;  it  is  equally  clear  that 
no  administration  could  act  which  was  so  disintegrated 
that  every  officer  had  unregulated  discretion.  In  the 
actual  business  of  government,  order  carried  to  the  ex- 
treme of  rigidity  and  disorder  carried  to  the  extreme  of 
confusion  would  alike  stop  administration.  There  must 
not  therefore  be  too  much  insistence  upon  logic  in  the 
use  of  either  theory;  either  system  lias  good  effect 
when  qualified  to  a  certain  extent  by  the  employment 
of  the  other.  Therefore,  the  effort  should  be  to  discover 
in  a  particular  governmental  unit  what  form  of  adminis- 
tration is  best  adapted,  and  to  make  that  the  principal 
torm.  In  the  working  out  of  that  system,  however,  much 
use  should  be  made  of  the  alternative  form  to  fill  in  the 
detail.  As  in  most  theories  of  government  the  best  re- 
sults often  will  be  obtained  by  a  compromise  position. 

Examples  of  the  two  divergent  principal  types  of 
administration  may  be  found  in  the  United  States  in  two 
positions  of  equal  prominence  in  the  government;  since 
the  Federal  government  has  centralized  administration, 
and  the  state  governments  have  decentralized  adminis- 
tration. Examples,  too,  of  the  qualification  of  one  type 
used  as  principal,  and  the  other  type  used  as  auxiliary, 
may  be  found  in  all  governments  of  the  United  States. 

(203) 


§   63  ADMINISTRATIVE    LAW.  [Ch.    8 

In  the  Federal  administration,  that  is  true, — the  admin- 
istration is  centralized  with  the  President  as  the  head; 
and  yet  throughout  various  functions  its  officers  have 
-discretion.  In  the  state  administrations,  that  is  true, 
also, — the  administration  is  decentralized,  the  Governor 
has  certain  functions,  so  has  each  head  of  each  depart- 
ment, so  that  the  Governor  is  not  the  head,  but  there  are 
these  various  heads;  and  yet  throughout,  within  the 
various  departments  themselves,  there  is  centralized  or- 
ganization. With  this  preface  the  attempt  in  this  chap- 
ter will  be  to  show  the  processes  of  administration  in 
the  centralized  Federal  administration,  and  by  contrast 
in  the  decentralized  state  administrations;  and  at  the 
same  time  to  expose  the  decentralism  in  the  one  and 
the  centralism  in  the  other. 

§  63.     Centralized  administration. 

It  has  been  pointed  out  in  the  introductory  paragraph 
that  in  a  centralized  administration  the  conception  is 
that  all  powers  of  administration  have  been  vested  in 
the  head  of  the  executive  department  and  that  all  of- 
ficers act  under  his  direction.  At  the  outset  it  must  be 
admitted  that  the  President  could  not  perform  in  person 
all  this  function.  Neither  could  any  head  of  department 
perform  in  person  all  that  the  President  intrusts  to  him 
of  the  business  of  execution.  Centralized  administration 
must  of  necessity  be  a  matter  of  devolution  of  powers 
of  superior  upon  inferior.  The  legal  question  involved 
in  this  preliminary  inquiry  is  how  far  powers  which 
have  been  vested  In  a  superior  may  be  delegated  to  an 
inferior.  One  recognizes  that  this  is  a  fundamental 
question,  that  the  discussion  of  centralized  administra- 
tion cannot  proceed  until  this  is  determined. 
(204) 


Ch.    8]  THEORY  OP  ADMINISTRATION.  g  ^3 

This  was  the  issue  in  Kunkle  v.  United  States,  122  U. 
S.  543  (1887) .  In  a  suit  brought  in  the  Court  of  Claims 
by  Major  Kunkle  for  back  pay,  the  decision  turned  upon 
this:  whether  he  had  been  dismissed  from  the  army 
by  due  sentence  of  court  martial,  which  was  the  defense 
of  the  United  States.  The  conviction,  findings,  and  sen- 
tence of  the  court  martial  were  offered  in  proof;  there- 
upon the  objection  was  made  that  no  action  by  the 
President  confirming  the  sentence  had  been  shown,  as 
was  required  by  the  65th  Article  of  War;  after  which 
it  was  shown  that  the  Secretary  of  War  had  approved 
the  findings. 

Mr.  Chief  Justice  Fuller  put  a  strict  construction 
upon  this  article :  As  the  sentence  under  consideration 
involved  the  dismissal  of  Kunkle  from  the  army,  it  could 
not  become  operative  until  approved  by  the  President, 
after  the  whole  proceedings  had  been  laid  before  him. 
The  important  question  is  therefore  whether  that  ap- 
proval has  been  positively  shown.  There  can  be  no  doubt 
that  the  President,  in  the  exercise  of  his  executive  pow- 
ers under  the  constitution,  may  act  through  the  head 
of  the  appropriate  executive  department.  The  heads  of 
the  departments  are  his  authorized  assistants  in  the  per- 
formance of  his  executive  duties,  and  their  official  acts, 
promulgated  in  the  regular  course  of  business,  are  pre- 
sumptively his  acts.  That  has  been  many  times  decided 
by  the  court.  Here,  however,  the  action  required  of 
the  President  is  judicial  in  its  character,  not  admin- 
istrative. As  Commander-in-Chief  of  the  army,  he  has 
been  made  by  law  the  person  whose  duty  it  is  to  review 
the  proceedings  of  courts  martial  in  cases  of  this  kind. 
This  implies  that  he  is  himself  to  consider  the  proceed* 

(205) 


§   53  ADMINISTRATIVE    LAW.  [Qh.   8 

ings  laid  before  him,  and  decide  personally  whether  they 
ought  to  be  carried  into  effect.  Such  a  power  he  cannot 
delegate.  His  personal  judgment  is  required — as  much 
so  as  it  would  have  been  in  passing  upon  the  case,  if  he 
had  been  one  of  the  members  of  the  court  martial  itself. 
He  may  call  others  to  his  assistance  in  making  his  ex- 
amination, and  in  informing  himself  what  ought  to  be 
(bine,  but  his  judgment  when  pronounced  must  be  his 
own  judgment  and  not  that  of  another. 

That  this  case  is  sound  in  its  special  facts,  it  cannot 
be  doubted  ;  and  yet,  obviously,  the  rule  of  this  case  must 
be  of  very  limited  application.  The  most  of  adminis- 
tration must  go  on  by  delegation,  and  this  opinion,  read 
with  attention,  if  a  proper  discrimination  is  made,  is  not 
in  the  way  of  that  need. 

Whether  this  ruling  represents  the  general  law  govern- 
ing administration  may  well  be  doubted.  At  all  events 
it  cannot  be  used  to  contradict  or  to  qualify  the  leading 
case— Williams  v.  United  Slates,  1  How.  200  (1843). 
This  was  an  action  by  the  United  States  against  the 
sureties  of  a  marshal  in  which  certain  defaults  by  the 
marshal  were  set  forth,  among  them  failure  to  account 
for  money  advanced  him  by  the  United  Stares.  It  ap- 
peared in  the  report  that  the  money  was  advanced  at  a 
time  when  a  statute  was  in  force  which  prohibited  the 
advance  of  public  money  in  any  case  whatsoever  to  the 
disbursing  officers  of  government  except  under  special 
direction  by  the  President.  It  was  proved  that  the  mon- 
ey was  advanced  in  this  case  under  special  warrant  from 
the  Secretary  of  the  Treasury,  who  had  been  authorized 
in  writing  by  the  President  to  make  such  advances  from 
time  to  time  to  various  classes  of  the  disbursing  officers 
(206) 


Ch.   8]  THEORY  OF  ADMINISTRATION.  §53 

of  the  government  as  should  be  found  necessary  to  the 
prompt  discharge  of  their  respective  duties.  The  con- 
tention for  the  sureties  upon  these  facts  were  That  the 
advances  were  not  made  in  accordance  with  law. 

The  opinion  of  Mr.  Justice  Daniell  shows  a  full  ap- 
preciation of  the  problem :  It  is  insisted  upon  as  the 
correct  interpretation  of  this  statute  that  the  power 
thereby  vested  to  make  advances  for  the  public  service 
is  not  one  appertaining  to  the  office  of  President,  but  is 
an  authority  strictly  personal  and  ministerial,  to  be  ex- 
ercised in  every  instance  only  by  the  individual  him- 
self, by  his  own  hand,  and  never  in  any  respect  to  be 
delegated.  Such  an  interpretation  of  the  law  this  court 
can  by  no  means  admit;  it  would  render  the  government 
an  absolutely  impracticable  machine.  The  President's 
duty  in  general  requires  his  superintendence  of  the  ad- 
ministration;  yet  this  duty  cannot  require  of  him  to 
become  the  administrative  officer  of  every  department 
and  bureau,  or  to  perform  in  person  the  numerous  de- 
tails incident  to  services,  which,  nevertheless,  he  is  in  a 
correct  sense  by  the  constitution  and  laws  required  and 
expected  to  perform.  This  cannot  be,  because  if  it  were 
practicable,  it  would  be  to  absorb  the  duties  and  respon- 
sibilities of  the  various  departments  of  the  government 
in  the  persona]  action  of  one  chief  executive  officer.  It 
cannot  be  for  the  stronger  reason  thai  it  is  impracticable, 
nay,  impossible. 

In  most  matters  of  administration,  then,  delegation 
must  be  the  rule  of  action.  An  extreme  case  of  this  is 
that  of  the  assistant  to  the  head  of  a  department.  It  is 
well  decided  thai  he  maj  act  in  the  stead  of  his  chief  in 
matters  of  administration  with  all  powers  that  the  chief 

(207) 


§   63  ADMINISTRATIVE    LAW.  [Q^    g 

would  have.  A  brief  ruling  to  this  effect  is  Hisey  v. 
Peters,  1896,  Pat.  Dec.  22  (1895).  Hisey's  appeal  from 
the  primary  examiner  in  the  Patent  Office  denying  his 
motion  to  dissolve  the  above-entitled  interference  was 
assigned  by  the  Commissioner  to  the  Assistant  Commis- 
sioner for  hearing  and  determination,  and  upon  such 
hearing  both  parties  appeared  before  the  Assistant  Com- 
missioner and  were  heard.  On  the  26th  day  of  January, 
1895,  the  Assistant  Commissioner  rendered  his  decision, 
dismissing  the  appeal  upon  the  ground  that  the  ques- 
tion thereby  raised  was  a  question  touching  the  merits, 
and  upon  which  the  appeal  lay  in  the  first  instance  to 
the  Board  of  Examiners  in  Chief.  Thereupon  by  a  mo- 
tion the  authority  of  the  Assistant  Commissioner  to 
hear  and  determine  any  quasi  judicial  question  was  chal- 
lenged. It  was  claimed  that  the  Commissioner  could 
not  assign  to  the  Assistant  Commissioner  duties  of  that 
character. 

But  Seymour,  the  Commissioner,  ruled:  That  the  As- 
sistant Commissioner,  under  such  an  assignment,  had  au- 
thority to  hear  and  determine  the  said  appeal ;  and  that 
his  determination  was  therefore  the  legal  determination 
thereof.  So  that  the  motion  to  rehear  the  appeal  was 
denied.  And,  indeed,  no  other  decision  would  be  possi- 
ble; it  would  be  a  singular  doctrine  and  subversive  of 
the  purposes  for  which  these  offices  of  Assistants  have 
been  created,  if  their  acts  were  to  be  held  of  no  force  until 
ratified  by  the  head.  It  is  to  relieve  the  overburdened 
principal  of  performance  in  person  of  a  part  of  his 
duties  that  this  office  is  established.  If  no  virtue  at- 
tached to  the  acts  of  this  assistant  until  approved  by 
the  head,  any  inferior  clerk  would  answer  the  purpose 
(208) 


(Jh.    g]  THEORY  OF  ADMINISTRATION.  §    63 

as  well.     It  is  not  intended  to  deny  that  the  assistant 

is  the  subordinate  of  the  chief;  can  be  ordered  to  do  or 
not  to  do  particular  things;  and  can  be  reversed  or  set 
aside.  But  until  so  revoked  or  disapproved  the  action 
of  the  assistant  stands  as  action  of  the  chief. 

The  converse  of  this  lasl  case  would  be  that  no  in- 
ferior can  exercise  by  delegation  any  power  that  his 
superior  could  not  exercise  himself.  It  must  be  self- 
evident  in  this  class  of  cases;  so  obvious,  that  it  is  all 
but  impossible  to  discern  a  case  for  it.  An  obscure  cir- 
cular is  all  that  is  at  hand  thai  is  in  point — Power  of 
Officers  to  Administer  Oaths.  Treas.  Dec.  No.  8741 
(1888).  It  appears  from  this  that  the  Solicitor  of  the 
Treasury  gave  an  opinion  under  date  of  February  9, 
1888,  that  an  auditor  or  clerk  in  the  Customs  Service 
appointed  as  Deputy  Collector  could  administer  only 
such  oaths  as  the  Collector  himself  had  authority  to 
administer;  and  that  as  the  Collector  had  no  authority 
by  law  to  administer  oaths  generally,  the  auditor  in  his 
position  of  Deputy  Collector  could  assume  no  authority 
to  administer  oaths  generally  in  matters  of  the  Customs 
Service.  All  of  which  is  axiomatic:  but  it  is  well  at 
times  to  return  to  first  principles.  And  surely  these  are 
the  elements  of  administration  by  devolution  of  powers 
that  the  superior  acts  by  his  inferior,  and  the  inferior 
acts  from  his  superior — no  more,  no  less,  in  either  case. 
This  is  the  first  situation  to  ascertain  and  determine  in 
any  study  of  centralized  administration.48 

48  Centralized  Administration. — Martin  v.  Mott,  12  Wheat.  31; 
Williams  v.  United  States,  1  How.  290;  Runkle  v.  United  States, 
122  U.  S.  543;  Cheatham  v.  Phillips,  23  Ark.  80;  Joyce  v.  Joyce,  5 
Cal.  449;  Ely  v.  Parsons,  55  Conn.  83;  Young  v.  Blackhawk  Co.,  66  la. 
460;   Jackson  Co.  Sup'rs  v.  Brush,  77  111.  59:   Triplett  v.  Gill,  7  J.  J. 

(209) 
Adm.  Law — 14. 


§   64  ADMINISTRATIVE    LAW.  [Ch.    8 

§  64.     Interdependence. 

Much  light  is  thrown  upon  devolution  by  an  opinion 
upon  the  Relation  of  the  President  to  the  Executive 
Departments,  7  Opin.  453  (1855).  The  President  asked 
the  opinion  of  the  Attorney-General  upon  the  following 
question:  Are  instructions  issued  by  the  heads  of  de-. 
partment  to  officers,  civil  and  military,  within  their  re- 
spective jurisdictions,  valid  and  lawful  without  contain- 
ing express  reference  to  the  direction  of  the  President : 
and  is  or  not  such  authority  implied  in  any  order  issued 
by  the  competent  department?  The  Attorney-General, 
Gushing,  returned  a  long  statement;  in  the  course  of 
it  he  set  forth  with  elaboration  the  relation  of  the  Pres- 
ident to  the  heads  of  the  departments.  This  is  the  first 
full  discussion  of  the  centralism  which  is  the  charac- 
teristic of  the  federal  administration  : 

By  the  explicit  language  of  the  constitution  the  execu- 
tive power  is  vested  in  the  President  of  the  United  States. 
In  perception,  however,  of  the  fact  that  the  actual  ad- 
ministration of  all  executive  power  cannot  be  performed 
personally  by  one  man — that  this  would  be  impossible, 
and  that  if  it  were  attempted  by  the  President,  the  ut- 
most ability  of  that  one  man  would  be  consumed  in 
official  details,  instead  of  being  left  free  to  the  duty  of 
general  direction  and  supervision, — in  perception,  I  say. 
of  this  fact,  the  constitution  provides  for  the  sub-divi- 

Marsh.  432;  State  v.  Shaw,  G4  Me.  263;  Watson  v.  Watson,  58  Md. 
442;  Commonwealth  v.  Smith,  143  Mass.  169;  Hall  v.  Collins,  117 
Mich.  617;  Monette  v.  Cratt,  7  Minn.  234;  Neill  v.  Gates,  152  Mo.  588: 
Pfund  v.  Valley  L.  &  T.  Co.,  52  Neb.  473;  State  v.  Paterson,  34  N.  J. 
L.  163;  Birdsall  v.  Clark,  73  N.  Y.  73;  Covington  v.  Rockingham, 
93  N.  C.  134;  Anderson's  Lessee  v.  Brown,  9  Ohio  151;  Coffee  v 
Tucker,  7  Humph.  49;   Caldwell  v.  Bush,  6  Wyo.  352. 

(210) 


(Jh.   8J  THEORY  OF  ADMINISTRATION.  8   ,,4 

sion  of  the  executive  powers  vested  in  the  President 
among  administrative  departments.  In  the  organiza- 
tion of  each  department  in  turn  it  was  provided  that  the 
head  thereof  should  discharge  his  administrative  duties 
in  such  manner  as  the  President  should  direct,  being  in 
eii'ect  the  executors  of  the  will  of  the  President.  It 
could  not  as  a  general  rule  be  otherwise  because  in  the 
President  is  the  executive  power  vested  by  the  consti- 
tution, and  also  because  the  constitution  commands 
that  lie  shall  take  care  that  the  laws  be  faithfully  exe- 
cuted; thus  making  him  not  only  the  depository  of  tin? 
executive  power,  but  the  sole  responsible  executive  min- 
ister of  the  United  States.  In  a  word,  there  is  a  general 
solidarity  of  responsibility  for  public  measures  as  be- 
tween the  President  and  the  heads  of  departments  of  di- 
rection to  the  ''resident  and  of  execution  to  the  heads  of 
department. 

Another  brief  opinion  that  is  the  complement  of  this 
last  opinion  is  Decisions  of  Heads  of  Departments  Bind- 
ing upon  Subordinates.  5  Opin.  87  (1849),  which  leads 
as  follows:  The  opinion  of  the  Secretary  of  Interior. 
directing  the  claim  of  II.  Lassell  for  two  thousand  two 
hundred  and  twenty-four  dollars  and  ninety-five  cents, 
against  the  Miami  nation  of  Indians,  to  lie  paid,  is.  in 
my  judgment,  binding  upon  all  the  subordinate  officers 
by  whom  the  account  is  to  be  audited  and  passed.  This 
has  been  the  practice  of  the  government  from  its  origin 
and  is  well  authorized  by  the  laws  organizing  the  de- 
partments as  it  is  absolutely  necessary  to  the  proper 
operation  of  the  government.  I  deem  the  point  so  clear 
that  I  feel  it  to  be  unnecessary  to  refer  to  opinions  upon 
the  question  given  at  different  times  by  this  office.     This 

(211) 


§   65  ADMINISTRATIVE    LAW.  |^(Jh.    H 

completes  the  description  of  centralism  in  the  federal 
administration — it  is  the  rule  throughout. 

As  a  matter  of  practical  government  the  performance 
of  centralized  administration  seems  prodigious.  The 
secret  of  the  success  is  system.  System — in  the  sub- 
ordination of  officers  inferior  to  superior;  system — in 
the  co-ordination  of  officers  of  the  same  grade  for  division 
of  labor.  The  subordination  is  necessary  so  that  all  may 
be  overseen  from  step  to  step.  The  result  in  administra- 
tion is  the  possibility  of  immediate  action.  Whatever 
any  superior  wishes  done,  he  may  command  it  done  with 
definiteness  by  the  most  remote  inferior.  Matters  of 
routine  are  done  at  the  bottom;  only  where  they  involve 
extraordinary  action  are  they  referred  to  the  top;  and 
yet  in  each  case  the  theory  is  preserved  that  all  action 
proceeds  from  the  top.  The  matters  of  routine  are  done 
by  every  officer  of  the  same  grade  in  co-ordination.  The 
principle  is  well  understood  that  ten  men  properly  co- 
ordinated upon  lines  of  exact  specialization  or  precise 
division  can  do  the  work  of  fifty  acting  as  separate  indi- 
viduals. The  effectiveness  of  a  centralized  administra- 
tion is  therefore  no  untested  theory;  it  is  a  demonstrated 
fact,49 

§  65.     Superior. 

Centralism  granted,  various  consequences  follow.  It- 
is  worth  while  now  to  look  into  the  processes  of  adinin- 

49  Interdependence. — Snyder  v.  Sickles,  98  U.  S.  211;  Catholic 
Bishop  v.  Gibbon,  158  U.  S.  167;  Parsons  v.  Venzke,  164  U.  S.  89; 
Carter  v.  Ruddy,  166  U.  S.  493;  Dart's  Case,  11  Opin.  109;  Hooper  v. 
Ferguson,  2  Land  Dec.  712;  In  re  Hull,  1869  Pat.  Dec.  68;  In  re  Ham- 
ilton, 2  Pen.  Dec.  217;  Fees  of  Clerks  of  Courts,  7  Comp.  Dec.  814; 
Proceedings  in  rem,  etc.,  Treas.  Dec.  No.  11,942:  Real  Estate,  3  Int. 
Rev.  Rec.  37. 

(212) 


Ch.   8]  THEORY  OF  ADMINISTRATION.  £   (,5 

istration  to  see  what  these  consequences  are.  The  mat- 
ter of  the  pension  of  one  Miller  produced  two  most  in- 
structive cases.  The  first  is  Miller  v.  Black,  128  U.  S. 
50  (1888).  Miller,  the  relator,  having  made  an  unsuc- 
cessful application  to  the  Commissioner  of  Pensions 
for  an  increase  of  his  pension,  finally  appealed  to  the 
Secretary  of  Interior;  it  was  decided  that  Miller  came 
within  the  laws  granting  a  special  rating  to  those  per- 
sons who  require  special  aid  and  attendance;  and  ac- 
cordingly the  Secretary  sent  down  a  memorandum  over- 
ruling the  decision  of  the  Commissioner.  The  petition 
for  mandamus  complained  that  the  Commissioner  re- 
fused to  perform  his  duty  in  the  premises  to  carry  into 
effect  the  official  decision  of  the  Secretary. 

Mr.  Justice  Bradley  gave  this  opinion  upon  this  case: 
If,  as  the  petition  suggests,  the  Commissioner  of  Ten- 
sions refuses  to  carry  out  the  decision  of  his  superior 
officer,  there  would  seem  to  be  prima  facie  ground  for 
at  least  calling  upon  him  to  show  cause  why  a  manda- 
mus should  not  issue.  This  is  all  that  the  petitioner 
asked,  and  this  the  court  below  refused.  As  a  general 
rule,  when  a  superior  tribunal  has  rendered  a  decision 
binding  upon  an  inferior,  it  becomes  the  ministerial 
duty  of  the  latter  to  obey  it  and  carry  it  out.  So  far  as 
respects  the  matters  decided,  there  is  no  discretion  or 
exercise  of  judgment  left.  The  appellate  tribunal  in  the 
present  case  is  the  Secretary  of  (be  interior,  who  has  no 
power  to  enforce  his  decision  by  mandamus,  or  by  any 
process  of  like  nature;  and,  therefore,  a  resort  to  a 
judicial  tribunal  would  seem  to  be  necessary  in  order  to 
afford  a  remedy  to  the  party  by  the  refusal  of  the  Com- 
missioner to  carry  out  his  decision.     But  it  is  suggested 

(213) 


§   65  ADMINISTRATIVE    LAW.  [Ch.    8 

that  a  removal  of  the  contumacious  subordinate  from  of- 
fice or  a  civil  suit  brought  against  him  for  damages 
would  be  effectual  remedies.  We  do  not  concur  in  this 
view.  We  think  that  the  case  suggested  is  one  in  which 
it  would  be  proper  for  the  court  to  interfere  on  man- 
damus. 

The  second  case  is  United  States  v.  Raum,  135  U.  S. 
200  (1890).  In  pursuance  of  this  decision  in  Miller  v. 
Black,  the  rule  was  granted  to  show  cause  why  the  man- 
damus should  not  issue.  The  Commissioner  thereupon 
filed  an  answer,  by  which  he  claimed,  among  other 
things,  that  his  official  action  in  the  rating  of  pensions  is 
not  subject  to  review  by  the  courts,  since  the  determina- 
tion of  that  question  lias  been  left  to  his  discretion;  that 
there  is  no  specific  provision  in  any  statute  providing 
any  set  rate  of  pension,  in  case  of  disability  such  as  that 
of  the  plaintiff;  that  he  has  carried  out  the  decision  of 
the  Secretary  of  Interior  rendered  in-  his  case  by  placing 
the  petitioner  within  the  class  designated  by  that  de- 
cision; but  that  he  has  fixed  the  rate  in  accordance  with 
his  own  practice  in  such  cases. 

Mr.  Justice  Bradley  again  delivered  the  opinion: 
Without  assuming  to  decide  wh ether  the  construction 
given  by  the  Commissioner  to  the  act  was  right  or  wrong, 
the  question  which  we  are  to  consider  is  whether,  in 
adopting  the  construction  he  did  and  acting  upon  it,  he 
disregarded  and  disobeyed  the  decision  of  the  Secretary 
of  the  Interior.  In  Miller  v.  Black,  128  U.  S.  50,  it  is  held 
thai  when  a  subordinate  officer  is  overruled  by  his  su- 
perior having  appellate  jurisdiction  over  him,  his  duty  to 
obey  the  decision  of  such  superior  is  a  ministerial  duty, 
which  he  can  be  compelled  by  mandamus  to  perform.  In 
(214) 


Ch.   8]  THEORY  OF  ADMINISTRATION.  §   65 

that  case  the  relator  Mas  the  same  person  as  in  the  pres- 
ent ;  but  the  record  was  very  meagre,  and  did  not  set  forth 
all  the  facts.  With  the  additional  facts  before  us,  which 
are  now  presented  by  these  documents,  in  connection 
with  the  answer  of  the  Commissioner,  we  are  satisfied 
that  there  was  no  failure  to  comply  with  or  to  carry  out 
the  decision  of  the  Secretary.  Whatever  may  have  been 
the  ground  upon  which  the  Commissioner  based  his  con- 
clusion, it  is  clear  that  the  decision  of  the  Secretary  left 
the  matter  open;  that  he  only  decided  that  the  relator 
came  under  the  meaning  of  the  law  granting  pensions 
to  those  who  require  regular  aid  and  attendance;  and 
that  the  Commissioner  acquiesced  in  this  decision  and 
rated  the  pension  at  $50  upon  that  basis. 

These  two  decisions  taken  together  show  what  the 
law  of  administration  is  in  a  very  striking  manner.  In 
these  decisions  the  course  of  things  in  administration  is 
described  in  a  very  exact  manner.  Where  a  superior 
officer  has  a  discretionary  power,  any  action  by  him 
in  pursuance  of  that  power  may  create  a  duty  for  his 
inferior  officer  of  such  nature  as  he  may  designate1  in 
his  order.  If  by  this  process  a  superior  officer  lays  an 
explicit  command  upon  his  inferior  officer,  the  result  is 
that  the  inferior  officer  is  now  under  a  ministerial  duty 
which  he  must  perform  according  to  the  tenor  of  the 
command.  This  in  a  simple  case  is  the  working  out  of 
administration.  The  usual  processes  of  administration 
are  more  complicated,  because  one  such  step  is  added  to 
another  such  step  For  example,  the  head  of  a  depart- 
ment gives  a  general  order  to  the  chief  of  a  bureau;  the 
result  is  that  it  is  the  ministerial  duty  of  the  chief  of 
bureau  to  act.  hut  wha!  action  he  shall  lake  is  within  the 

(215) 


£    66  ADMINISTRATIVE    LAW.  [Ch.    8 

discretionary  power  allowed  to  him  by  this  general  order, 
lie  in  turn  gives  a  special  order  to  the  chief  of  some  di- 
vision; the  same  process  recurs;  it  is  the  ministerial  duty 
of  the  chief  of  division  to  act,  but  what  directions  he  shall 
give  are  within  his  discretion.  The  last  step  is  the  des- 
ignation of  the  chief  of  division  of  some  special  clerk  to 
do  some  special  act;  here  at  last  the  duty  is  ministerial, 
the  clerk  must  do  that  act.  In  brief,  this  is  the  process 
of  administration,  the  continuous  process  of  the  action 
of  a  superior  creating  duties  for  an  inferior.50 

§  66.     Inferior. 

If  this  description  is  correct,  anything  that  is  contrary 
to  this  in  principle  cannot  stand  in  any  administration 
which  is  constructed  upon  the  theory  of  centralism.  The 
opposite  of  all  this  would  be  to  conceive  of  a  state  of  the 
law  where  the  action  of  some  inferior  with  some  discre- 
tion concluded  matters  and  created  thereby  ministerial 
duties  for  the  superior  to  perfect  that  action.  This 
would  be  an  inversion  indeed.  And  yet  this  is  no  sup- 
posititious case.  Again  and  again,  it  has  been  urged  in 
various  cases  upon  various  facts  that  the  action  of  some 
subordinate  had  made  the  matter  res  adjudicata.  It  is 
well,  therefore,  to  be  prepared  for  such  a  contention. 

A  leading  case  in  this  phase  of  the  question  is  Orchard 
v.  Alexander,  157  V.  S.  372  (1895).  This  case  arose 
out  of  a  competition  for  a  tract  of  government  land  in 
Washington  State.  The  plaintiff  was  first  in  the  field ; 
on  December  20,  1880,  he  filed  his  declaratory  statement 

so  Superior.— United  States  v.  Black,  128  U.  S.  40;  United  States  v. 
Raum,  135  U.  S.  200;  Las  Animas  Grant,  15  Opin.  94;  Fowler  v. 
Dodge,  1898  Pat.  Dec.  257;  Law  &  Prac.  of  Reimbursement,  6  Pen. 
Dec.  297;  Revision  of  Accounts,  4  Comp.  Dec.  723;  Pueblo  Case,  5 
Land  Dec.  483. 
(216) 


Ch.    8]  THEORY  OF  ADMINISTRATION.  <    (,(, 

as  required  by  the  Laud  Laws,  and  on  .March  12,  1883, 
lie  made  his  final  proof  to  the  register  and  receiver  of 
the  Local  Land  Office,  together  with  his  payment,  all 
of  which  was  duly  approved  by  the  local  officials  in  ac- 
cordance with  law.  The  defendant  came  into  the  con- 
troversy at  this  stage;  on  August  7,  1883,  he  filed  in 
the  office  of  the  Commissioner  of  the  General  Land 
Office  his  corroborated  affidavit,  in  which  he  alleged 
that  the  plaintiff  had  at  no  time  taken  up  residence 
upon  the  land,  so  that  all  his  entry  was  void;  the  Land 
Bureau,  upon  due  proceedings  had  upon  the  merits  of 
this  contested  case,  gave  decision  for  the  defendant. 
Thereupon  the  plaintiff  brought  this  ejectment  in  the 
state  courts  upon  the  ground  that  his  right  had  vested 
by  the  decision  of  the  local  officers  at  the  outset;  and 
that  therefore  it  was  beyond  the  power  of  the  depart- 
ment. 

Mr.  Justice  Brewer  delivered  an  able  opinion:  All 
powers  of  the  local  officers  ceased  to  be  final  when  the 
general  power  of  review7  and  supervision  of  all  execu- 
tive duty  concerning  the  survey  and  sales  of  lands  was 
vested  in  the  higher  officials  of  the  Land  Department 
at  Washington.  Stress  is  laid  upon  the  words  "execu- 
tive duties"  as  though  the  approval  of  the  evidence  of 
settlement  and  improvement  was  not  an  executive  duty 
but  a  purely  judicial  act.  This  is  a  mistake.  True, 
it  involves  the  weighing  of  testimony  and  the  exercise 
of  judgment,  but  equally  so  do  many  administrative 
acts.  The  approval  of  the  evidence  offered  in  respeel 
to  settlement  and  improvement  is  only  quasi  judicial 
It  is  as  much  an  administrative  as  a  judicial  act.  Tt 
is  only  one  step  in  the  procedure  by  which  through  an 

(217) 


3    (,6  ADMINISTRATIVE    LAW.  r£h.    8 

executive  department  the  title  to  public  land  is  obtained 
by  an  individual.  Great  inequalities  in  the  adminis- 
tration of  the  Land  Department  of  the  United  States 
would  inevitably  ensue  if  the  final  determination  of 
matters  connected  with  the  sale  and  disposal  of  the 
public  lands  were  left  to  a  multitude  of  local  land  offi- 
cers. Obviously,  in  order  that  equal  justice  might  be 
administered,  it  was  uecessary  that  there  should  be  a 
superintendence  of  all  the  actions  of  the  local  land 
officers  and  all  the  proceedings  in  the  local  land  offices. 

The  most  perspicuous  thing  that  is  said  in  this  last 
opinion  is  that  unless  the  supremacy  of  the  head  is  ad- 
mitted in  all  matters  of  administration  there  will  not 
be  uniform  administration.  The  further  down  in  ad- 
ministration one  goes,  the  more  obvious  it  is  that  this 
must  be.  The  case  of  Hull  v.  Commissioner,  2  Mac- 
Arthur,  90  (1875),  was  a  motion  for  mandamus  com- 
manding the  Commissioner  of  Patents  to  issue  a  pateni 
to  the  relator.  Hull.  In  the  Patent  Office  there  are 
three  grades :  the  Primary  Examiners,  the  Examiners- 
in-Chief,  and  the<  lommissioner.  The  application  of  Hull 
was  rejected  by  the  primary  examiner  but  allowed  by 
the  Examiners-in-Chief.  At  the  issue  of  the  patent  the 
Commissioner  interfered.  Hull  claimed  that  it  was  the 
ministerial  duty  of  the  Commissioner  to  issue  the  patent. 

The  court  was  to  the  contrary :  A  favorable  decision 
of  the  Board  of  Examiners  in  Chief  in  the  Patent  Office 
upon  an  application  is  not  conclusive  upon  the  ('one 
missioner  of  Patents,  and  it  does  not  follow  that  there 
upon  he  has  only  the  ministerial  duty  to  perforin  of 
countersigning  and  scaling  the  pateni  ;  the  interpreta- 
tion contended  for  would  turn  the  head  of  the  office 
(218) 


Ch.   8]  THEORY  OF  ADMINISTRATION.  §    (,(, 

into  the  tail.  I  think  all  rights  of  appeal  are  omitted 
because  it  was  unnecessary  to  confer  it;  for  the  Com- 
missioner's supervisory  powers  over  all  acts  of  all  sub- 
ordinates in  his  office  is  such  as  to  preclude  any  heed 
for  such  specification.  The  essential  fact  is  that  the 
grant  of  the  patent  is  at  last  the  act  of  the  Commis- 
sioner, and  he  may  refuse  to  grant  it. 

The  perspicacity  of  these  cases  is  to  be  remarked  again. 
In  each  of  these  cases  a  duty  is  assigned  by  law  to 
an  inferior  in  a  department,  but  it  is  assigned  to  him 
as  an  inferior  in  a  department.  Whatever  power  is 
given  to  an  inferior  under  a  superior  is  given  as  to 
an  inferior  under  a  superior.  No  action  of  an  inferior 
in  a  centralized  administration  can  be  independent  of 
a  superior.  Still  less  can  any  action  of  an  inferior 
create  a  duty  which  a  superior  must  perform.  These 
things  are  contrary  to  centralized  administration. 

A  consistent  account  of  centralized  administration 
can  be  made  if  it  is  said  that  every  act  of  every  officer 
is  done  under  some  other  officer  and  every  act  of  that 
oileer  under  some  other  officer  and  so  up  from  the  many 
officers  at  the  bottom  to  the  one  officer  at  the  top.  This 
is  the  hierarchy  in  a  centralized  administration  which 
results  from  the  systematic  organization.  And  this  is 
the  process  of  administration  in  a  centralized  admin- 
istration. At  the  top -the  powers  of  the  chief  should 
be  regarded  as  all  discretionary;  at  the  bottom  the 
duties  of  the  officers  should  be  regarded  as  all  minis- 
terial ;  in  the  grades  between  these  the  officer  will  have 
ministerial  duties  in  his  relations  to  his  superior  and 
discretionary   powers   in   his  relations   to  his  inferiors. 

(210) 


jj    f,7  ADMINISTRATIVE    LAW.  [(Jfc    8 

It  is  by  the  interact  ion  of  these  powers  and  duties  that 
administration  goes  on.51 

§  67.     Decentralized  administration. 

In  centralized  administration  tilings  run  all  one  way. 
in  decentralized  administration  things  run  all  the  other 
way.  Decentralized  administration  is  an  inversion  of 
centralized  administration.  As  an  abstract  statement, 
in  centralized  administration  no  officer  in  the  adminis- 
tration has  independent  powers,  in  decentralized  ad- 
ministration e\er\  officer  in  the  administration  has  in- 
dependent powers;  in  centralized  administration  every 
officer  is  subordinate  to  some  other  officer,  in  decen- 
tralized administration  no  officer  is  subordinate  to  any 
other.  These  statements  in  themselves  are  enough  to 
show  that  such  a  thing  as  an  absolute  decentralized  ad- 
ministration would  be  unworkable.  And  in  fact  it  does 
not  anywhere  exist  in  such  an  absolute  form. 

When  it  is  said  in  the  governments  of  the  American 
states  the  administration  is  decentralized,  it  is  meant 
that  the  characteristic  thing  in  those  administrations 
is  decentralism.  And  so  it  is.  In  the  state  govern- 
ments themselves,  there  is  a  governor,  and  there  are  the 
Secretary  of  State,  the  State  Treasurer,  and  the  others. 
These  are  separately  elected  by  the  people;  the  heads  of 
departments  do  not  owe  their  position  to  the  Governor 
in  any  way,  therefore.     The  result  is  in  the  state  ad- 

51  Inferior. — Knight  v.  Land  Ass'n,  142  U.  S.  161;  Orchard  v. 
Alexander,  157  U.  S.  372;  Hull  v.  Commissioner,  2  MacArthur  90; 
Mississippi  v.  Durham,  4  Mackey  238;  Relation  of  President  to  Ex- 
ecutive Dept.,  7  Opin.  453:  In  re  Day,  3  Pen.  Dec.  76;  Advance  De- 
cisions, 5  Comp.  Dec.  49:  Power  of  Officers,  Treas.  Dec.  No.  8,741; 
Mott  of  Coffman.  19  Land  Dec.  106;  In  re  Jones,  1874  Pat.  Dec.  53. 

(220) 


Ch.   8]  THEORY  OF  ADMINISTRATION.  g   57 

ministration  that  the  powers  of  the  heads  of  the  de- 
partments are  their  own,  subject  to  the  direction  of  no 
one  else;  the  duties  of  the  heads  of  the  departments  are 
their  own  subject  to  the  direction  of  no  one  else.  It 
is  an  inaccuracy  to  speak  of  the  Governor  of  the  state 
as  the  Chief  of  the  Administration;  the  administration 
of  the  states  has  many  heads. 

There  is  no  administrative  relation  between  the  Gov 
ernor  and  the  heads  of  the  departments,  therefore.  If 
the  Governor  commands,  the  head  of  the  department 
is  under  no  obligation  to  obey  whatever.  Not  only  is 
this  so  in  theory,  it  often  is  shown  true  in  fact.  There 
is,  however,  a  legal  relation  between  the  Governor  ami 
the  heads  of  the  departments.  Every  officer  in  the 
state  has  by  law  certain  rights  and  certain  duties.  That 
is  true  of  the  Governor;  that  is  true  of  the  head  of 
the  department.  And  this  further  is  true:  that  there 
may  be  some  legal  interrelation  between  these  rights 
and  these  duties.  It  may  be  that  the  exercise  of  some 
power  by  the  Governor  may,  when  the  act  is  done,  fur- 
nish the  occasion  for  the  performance  of  some  duty  by 
the  head  of  the  department.  If  that  is  so,  that  is  a 
legal  relation  which  the  judicial  courts  may  deal  with. 

It  comes  to  this  in  a  court  of  law:  was  the  action  of 
the  Governor  discretionary,  and  is  the  action  required 
of  the  head  thereby  ministerial?  If  such  be  the  case 
the  propriety  of  the  issue  of  mandamus  by  the  courts 
appears  in  a  most  clear  manner.  Stale  v.  Wrotnowski, 
IT  La.  Ann.  156  (1865).  This  was  an  application  for 
a  mandate  ordering  Wrotnowski,  Secretary  of  State,  to 
;i!'fix  his  official  signature  and  the  seal  of  his  office  to  a 
commission   signed   by  Wells,   Governor  of  the   Stale 

(221) 


<    (,7  ADMINISTRATIVE    LAW.  [£n.    8 

The  Secretary  in  his  return  to  the  petition  set  forth 
that  he  refused  to  issue  the  commission  because  he  re- 
garded the  action  of  the  Governor  illegal  and  void.  The 
least  mi  was  that  the  office  was  then  held  by  one  Shaw, 
whose  commission  did  not  expire  until  the  next  regular 
election  ;  and  therefore  he  maintained  that  the  Governor 
was  without  any  authority  to  supersede  the  said  Shaw. 
Matters  thus  at  a  deadlock,  the  court  undertook  to  de- 
cide. 

The  opinion  of  Ilsley  is  interesting  reading:  Di- 
vested of  all  extraneous,  superfluous,  and  irrelevant 
surroundings,  what  is  the  real  question  to  be  solved? 
We  apprehend  it  to  be  this:  Is  the  Secretary  of  Star-' 
a  mere  ministerial  officer  as  regards  the  authorization 
by  him  of  official  acts:  or  is  he.  under  the  constitution 
and  laws,  vested  with  a  discretionary  and  supervisory 
power  which  enables  him.  before  executing  the  func- 
tions imposed  upon  him  in  this  particular,  to  judge  for 
himself  whether  such  official  acts  as  need  his  ministry 
are  constitutional  or  not  constitutional,  legal  or  illegal. 
and  to  affix  or  withhold  from  such  acts,  at  his  option 
according  to  his  discretion,  his  official  signature,  and 
the  impress  of  the  great  seal  of  the  state?  It  seems 
to  us  that  the  Secretary  of  Stave  is  not  to  suspend  his 
action  to  inquire  why  and  wherefore  any  appointment 
by  the  Governor  is  made.  His  duty  is  plain;  he  is 
not  directed,  but  ordered  by  law  to  perform  it.  When 
commissions  from  the  Governor  need  authentication 
he  shall  affix  his  official  signature  and  the  public  sea! 
of  the  state,  for  these  are  official  acts  of  another  which 
must  be  effectuated.  Were  this  right  of  supervision, 
which  is  almost  equivalent  to  a  veto  power,  in  the  Sec 

(900) 


Ch.   8]  THEORY  OF  ADMINISTRATION.  §   tf 

L-ctary  of  State,  as  it  is  seriously  contended  that  it  is, 
it  would  indeed  produce  most  startling  consequences. 
The  Secretary  of  State  could  paralyze  at  will  all  such 
constitutional  action  of  the  Governor.  There  is  no  ar- 
gument why  the  Secretary  of  State  should  attempt  to 
exercise  discretionary  powers  where  the  law  confers 
none  on  him,  but  on  the  contrary  imperatively  orders 
him  to  do  the  act  required  of  him. 

A  case  to  the  same  effect  well  worth  insertion  here 
because  of  the  clearness  of  its  view  is  State  v.  Crawford, 
28  Fla.  441  (1891).  This  case  is  remarkable  at  the 
outset  in  its  parties,  since  the  Governor  of  Florida 
was  the  relator  and  the  Secretary  of  State  was  the  de- 
fendant. The  Governor  had  appointed  one  Davidson 
United  States  Senator  as  an  interim  appointment,  and 
the  Secretary  of  State  had  refused  to  seal  and  counter- 
sign the  commission.  The  Governor  prayed  the  writ 
to  carry  into  effect  his  executive  act  by  a  direction  of 
the  court  to  the  Secretary  to  countersign  the  same. 
Here  there  is  an  unusual  situation  of  things,  the  execu- 
tive as  executive  obliged  to  proceed  to  the  courts  to 
get  his  acts  performed — a  situation  possible  only  in 
a  decentralized  administration;  for  as  will  be  shown 
in  a  later  chapter,  in  a  centralized  administration  there 
would  be  administrative  process  to  compel. 

The  opinion  of  Raney,  then  Chief  Justice,  leaves  noth- 
ing to  doubt:  That  the  writ  of  mandamus  lies  to  re- 
quire the  performance  of  a  clear  official  duty  involving 
discretion,  by  any  one  of  the  administrative  officers 
of  the  executive  department  of  this  state  is  a  settled 
proposition  of  the  law.  To  hold  that  the  mere  fact 
of  these  officers  belonging  to  the  executive  department 

(223) 


ft   57  ADMINISTRATIVE    LAW.  [Ch.    8 

of  the  government  should  exempt  them  from  this  judicial 
process  as  to  a  plain  ministerial  duty  or  where  they 
are  given  no  official  discretion,  would  be  irreconcilable 
antagonism  to  a  consistent  line  of  judgments.  The  writ 
effectually  secures  the  performance  of  public  official 
duty  and  the  establishment  of  public  right.  It  is  the 
character  of  the  duty,  and  not  of  the  nature  of  the 
office,  which  must,  as  long  as  the  law  is  regarded,  al- 
ways control  a  court  in  deciding  whether  or  not  it  will 
issue  a  mandamus  against  the  defendant.  The  duty 
devolved  upon  the  Secretary  in  this  case  before  us  is 
purely  ministerial ;  and  it  involves  no  discretion. 

This  legal  relation  enforced  by  the  courts  makes  de- 
centralized administration  possible,  fur  it  imposes  a  cer- 
tain order  upon  the  course  of  action  in  administration 
without  which  there  would  bo  such  disorder  that  the 
business  of  administration  would  come  to  a  stop  often. 
It  is  a  rougher  method  than  the  administrative  relation 
enforced  by  the  executive,  but  it  is  tolerable.  The  saint- 
solution  governs  in  what  relations  the  departments  must 
have  each  with  the  other.  There  is  no  central  admin- 
istrative control  to  accommodate  their  differences,  but 
there  is  the  legal  control  of  the  courts  to  break  any 
deadlock  which  might  result  if  such  stood  upon  its  in- 
herent independence  in  its  relations  toward  the  other. 

AVithin  the  departments  themselves  the  centralized 
system  is  almost  invariable.  Administration  in  genera! 
may  go  on  with  a  decentralized  administration;  but 
administration  in  particular  is  not  possible  with  any 
effect  except  by  centralized  administration.  There  are 
within  most  of  the  departments  in  state  administration 
centralized  organizations.  And  in  municipal  govern  - 
(224) 


Ch.    8]  THEORY  OF  ADMINISTRATION.  §   68 

meiit  the  present  fashion  in  the  charters  based  upon 
the  experience  of  failure  of  the  decentralized  forms,  is 
to  make  the  administration  centralized  throughout,  as 
the  only  hope  for  proper  enforcement  of  the  law.52 

§  68.  Independence. 

In  the  last  paragraph  examples  of  centralism  in  de- 
centralism  were  seen.  In  the  present  paragraph  exam- 
ples of  decentralism  in  centralism  will  be  seen.  The 
case  supposed  is  that  an  officer  in  a  centralized  ad- 
ministration has  a  power  vested  in  him  by  law,  in  the 
exercise  of  which  he  has  discretion  by  the  external  law 
of  administration.  Has  he,  therefore,  independence  by 
the  internal  law  governing  administration?  This  is 
the  issue  between  centralism  and  decentralism  in  a 
most  difficult  form.  For  the  independence  of  the  in- 
ferior officer  it  may  be  said  that  this  duty  has  been 
vested  in  him  by  the  assignment  of  the  legislature; 
it  is  his  duty,  therefore  the  discretion  must  be  his; 
it  is  his  discretion,  therefore  no  other  officer  can  con- 
trol in  it.  For  the  dependence  of  the  inferior  officer 
it  may  be  said  that  every  one  of  his  duties  he  must  per- 
form under  the  direction  of  his  superior ;  since  he  is 
an  inferior  officer,  he  is  subordinate  in  whatever  may 
be  given  to  him  to  do:  and  as  an  inferior  he  must  in 
all  matters  obey  his  superior.  To  choose  between  these 
balanced  arguments  will  require  a  careful  investigation. 

Butterworth  v.  Hoe,  112  U.  S.  50   (1884),  is  one  of 

52  Decentralized  Administration. — State  v.  Crawford,  28  Fla.  441; 
Shaw  v.  Macon,  21  Ga.  280;  State  v.  Welsh,  109  la.  19;  McMaster 
v.  Herald,  56  Kan.  231;  State  v.  Wrotnowski,  17  La.  Ann.  156;  Al- 
brecht  v.  Long,  27  Minn.  81;  Minkler  v.  State,  14  Neb.  181;  Peo- 
ple v.  Mace,  84  Hun,  344;  Davis  v.  State,  35  Tex.  118;  State  v. 
McCarty,  65  Wis.  163. 

(225) 
Adm.  Law — 15. 


g   68  ADMINISTRATIVE    LAW.  [Ch.  g 

the  most  perplexing  cases  in  American  administrative 
law.  The  facts  upon  which  this  controversy  arose  are 
shown  by  the  record  to  have  been  as  follows :  In  1881, 
Gill,  one  of  the  relators,  made  application  to  the  Com- 
missioner of  Patents,  the  defendant,  for  letters  patent. 
An  interference  was  declared  with  an  unexpired  patent 
of  one  Scott.  The  Examiner  of  Interferences  decided 
in  favor  of  Scott;  Gill  appealed  to  the  Examiners-in- 
Chief,  but  the  decision  was  affirmed;  Gill  then  appealed 
to  the  Commissioner  of  Patents,  who  adjudged  that  the 
patent  showed  issue;  and  thereupon  an  appeal  was  taken 
by  Scott  to  the  Secretary  of  Interior;  and  at  that  last 
stage  the  decision  was  for  Scott.  Gill  now  asked  for  a 
mandamus  to  the  Commissioner  of  Patents  to  compel 
him  to  issue  the  patent  in  pursuance  with  his  own  de- 
cision. The  Secretary  in  his  return  based  his  refusal 
solely  upon  the  reversal  of  that  decision  by  his  superior. 
the  Secretary  of  Interior,  whom  he  felt  bound  to  obey. 

In  a  case  of  such  moment,  it  is  well  to  examine  the 
opinion  with  the  care  which  the  occasion  deserves.  Mr. 
Justice  Matthews  said:  Mandamus  evidently  will  not 
lie  to  compel  an  officer  to  do  a  thing  which  his  superior 
in  authority  has  lawfully  ordered  him  not  to  do.  The 
direct  and  immediate  question  then  is  whether  the  Sec- 
retary of  Interior  had  power  by  law  to  revise  and  re- 
verse the  action  of  the  Commissioner  of  Patents  in 
awarding  to  Gill  priority  of  invention,  and  adjudging 
him  entitled  to  a  patent.  The  authority  and  power 
claimed  for  the  Secretary  of  Interior  are  asserted  and 
maintained  upon  these  general  grounds:  that  he  is  the 
head  of  the  department  of  which  the  Patent  Office  is 
a  bureau;  that  the  Secretary  is  by  various  statutes 
(226) 


Ch.   8]  THEORY  OF  ADMINISTRATION.  s    68 

charged  with  supervision  over  the  commissioner;  that 
this  general  relation  of  official  subordination,  with  the 
accompanying  powers  of  supervision  and  direction,  ex- 
tends to  all  the  official  acts  of  the  commissioner,  with- 
out regard  to  any  distinction  between  those  which  are 
merely  ministerial  and  those  which  are  judicial  in  their 
nature. 

Such  supervision  and  direction  may  be  exerted  at  any 
stage  of  a  proceeding  in  the  discretion  of  the  Secretary, 
whether  in  advance,  or  during  its  progress,  or  after  its 
termination,  and  embraces,  therefore,  the  mode  of  ap- 
peal, though  no  appeal  in  express  terms  is  actually  given. 
If  the  Secretary  is  charged  by  law  wills  judicial  super- 
vision, he  is  bound  to  fulfill  it.  It  is  imperative,  not 
discretionary.  Tie  cannot  discharge  it  in  a  manner 
either  arbitrary  or  perfunctory,  lie  cannot  satisfy  it 
by  rules  or  directions  for  superintendence  and  general 
oversight  to  secure  conformity  only.  It  is  a  maxim  of 
the  law,  admitting  few.  if  any  except  inns,  that  every 
duty  laid  upon  a  public  officer,  for  the  benefit  of  a  pri- 
vate person,  is  enforceable  by  judicial  process.  Thus 
in  the  Patent  Office  there  is  claimed  equal  right  of  all 
parties  to  obtain  his  review  of  the  acts  of  the  Commis- 
sioner, not  only  in  final  judgment  but  upon  all  inter- 
locutory   questions. 

Congress  has  on  the  contrary  provided  four  tribunals 
for  hearing  applications  for  patents,  with  Three  success- 
ful appeals  in  which  the  Secretary  of  the  Interior  is 
not  included,  giving  jurisdiction  in  appeals  from  the 
Commissioner  to  a  judicial  body.  The  conclusion  can- 
not be  resisted  that  to  whatever  else  supervision  and 
direction  on  the  pari  of  the  head  of  a  department  may 

(227) 


§   68  ADMINISTRATIVE    LAW.  [Ch.    8 

extend,  they  do  not  extend  to  a  review  of  the  acts  of  a 
Commissioner  of  Patents  in  those  things  in  which,  by 
law,  he  is  hound  to  exercise  his  discretion  judicially. 
It  is  not  consistent  with  the  idea  of  judicial  action  that 
it  should  be  subject  to  the  direction  of  a  superior  in 
the  sense  that  authority  is  conferred  upon  the  head 
of  an  executive  department  in  reference  to  his  subordi- 
nates. Such  objection  takes  from  it  the  quality  of  a 
judicial  act.  Thai  it  was  intended  that  the  Commis- 
sioner of  Patents  in  issuing  or  withholding  patents,  in 
re-issues,  interferences  and  extensions,  should  exercise 
quasi  judicial  functions,  is  apparenl  from  the  nature  of 
the  examinations  and  decisions  lie  is  required  to  make 
and  the  mode  provided  by  law.  according  to  which  exclu- 
sively they  may  be  reviewed.  We  think  further  that 
mandamus  will  lie,  and  it  is  properly  directed  to  the 
Commissioner  of  Patents.     We  have  adjudged  that  it 

belongs   exclusively    to    the    (  'ommissioiier    t<i    decide    the 

question  for  himself  whether  a  patent  ought  to  be  issued. 
An  accurate  presentation  of  what  is  in  effect  decided 
by  this  last  case  is  to  be  found  in  Houston  v.  Barker 
et  ;il..  isss,  Pat.  Dec.  17:;  (1888).  h  appeared  that  in 
the  course  of  a  trial  in  the  Patent  Office  of  an  inter- 
ference proceeding  in  the  case  of  Houston  v.  Barker  v. 
Bannister  v.  Eastman,  a  motion  was  made  by  counsel 
for  Eastman  and  Bannister  to  suppress  or  strike  out 
the  deposition  of  one  of  Barker's  witnesses  on  the  al- 
leged ground  that  said  witness,  while  testifying,  had, 
under  the  advice  or  instruction  of  Barker's  counsel, 
refused  to  answer  certain  questions  propounded  to  him 
on  cross-examination.  The  Commissioner  granted  the 
motion ;  and  it  is  from  his  action  in  so  doing  that  Barker 
(228) 


Ch.    8]  THEORY  OF  ADMINISTRATION.  §    68 

appealed  to  the  Secretary.  The  respondent  at  the  out- 
set denied  the  appellate  jurisdiction  of  the  Secretary. 

An  Assistant  Attorney  General,  Montgomery,  ad- 
vised the  Secretary  of  Interior  as  follows  upon  the 
question  of  the  appellate  jurisdiction  of  the  Secretary 
over  the  Commissioner  of  Patents:  The  Commissioner 
of  Patents  lias  two  classes  of  duties  to  perform,  to  wit: 
Duties  imposed  by  Congressional  legislation,  and  duties 
imposed  by  Departmental  rules  and  regulations  emanat- 
ing from  or  authorized  by  the  Secretary  of  Interior 
as  the  head  of  the  department  of  which  the  Patent 
Office  is  a  part.  When  performing  that  class  of  judicial 
or  quasi  judicial  duties  which  by  an  act  of  Congress 
have  been  imposed  upon  the  Commissioner  of  Patents 
it  seems  to  be  well  settled  that  no  appeal  lies  from  the 
Commissioner  of  Patents  to  the  Secretary  of  Interior. 
But  where  it  is  not  Congress  but  the  Secretary  of  In- 
terior who  in  the  exercise  of  his  legitimate  authority 
as  the  head  of  the  department  preseribes  rules  and 
regulations  for  the  government  of  the  Commissioner 
of  Patents  and  his  subordinates.  I  think  there  can  be 
no  question  but  that  he  has  jurisdiction  to  review  and 
reverse  the  action  of  the  said  Commissioner  whenever 
the  latter  disregards  or  violates  any  of  the  rules  thus 
legally  prescribed  by  the  Secretary  for  his  government. 
In  the  present  case  the  action  was  judicial  and  there- 
fore no  appeal  lies. 

It  must  be  admitted  that  this  is  the  law  of  the  ad- 
ministration of  patents.  The  situation  is  that  of  a  de- 
centralized bureau  in  a  department  which  in  other  re- 
spects is  centralized.  The  position  of  things  is  made 
altogether  abnormal   by  the  provision  that  there  shall 

(220) 


§   69  ADMINISTRATIVE    LAW.  [Ch.   8 

be  a  direct  appeal  from  the  bureau  to  the  courts  of 
the  District  of  Columbia.  This  subordination  of  the 
administration  to  the  judiciary  in  this  instance  is  al- 
together contrary  to  the  rule  requiring  separation  of 
powers,  as  was  pointed  out  in  this  very  situation  in  a 
previous  chapter.  The  result  is  this  monster  in  the 
administration.  This  situation  in  the  bureau  of  the 
Department  of  Interior  is  altogether  an  exception.  It 
is  discussed  here  so  that  the  full  force  of  the  argument 
that  the  inferior  officer  should  be  independent  when  a 
power  is  given  him  by  law  may  be  seen  at  the  outset.58 

§  69.     Lower. 

As  a  matter  of  argument  there  is  about  as  much  to 
be  said  for  the  position  that  when  a  power  is  vested  in 
an  inferior  officer  he  has  entire  independence  in  its 
exercise  as  there  is  to  be  said  for  the  position  that  when 
a  power  is  vested  in  an  inferior  officer  by  a  statute  bis 
superior  may  direct  him  in  its  exorcise.  And  yet  that 
former  view  discussed  in  the  last  paragraph  is  the  rule 
for  only  a  few  bureaux;  in  the  federal  administra- 
tion as  a  whole  the  rule  of  the  present  paragraph  gov- 
erns. The  truth  is  that  the  solution  of  this  problem 
has  been  by  events  rather  than  by  arguments,  by  power 
rather  than  Logic.  In  an  administration  which  is  «en- 
tralized  by  its  organization  it  is  not  possible  lor  the  head 
of  a  single  department    to  stand   out  against  the  chief 

[ndependence. — Marbury  v.  Madison,  1  Cranch  169;  Butterworth 
v.  United  States,  112  U.  S.  50;  State  v.  Hixon,  27  Ark.  402;  People  v. 
Mizner,  7  Cal.  519;  Trimble  v.  People,  19  Colo.  187;  Queen  v.  Atlanta, 
59  Ga.  318;  Todd  v.  Dunlap,  99  Ky.  449:  Dubuc  v.  Voss,  10  La. 
Ann.  210;  Andrews  v.  King,  77  Me.  224;  People  v.  Roosevelt,  168 
N.  Y.  488;   Keenan  v.  Perry,  24  Tex.  253. 

(230) 


Ch.   81  THEORY  OF  ADMINISTRATION  §69 

executive,  and  argue  for  his  independence  to  ;i  cer- 
tain extent  upon  certain  matters  for  certain  reasons. 
Right  or  wrong,  in  a  presidential  administration  the 
head  of  the  department,  must  obey  if  it  comes  to  a  square 
issue,  from  whirli  neither  will  retreat  in  whatever  mat- 
ter of  administration  the  issue  may  arise. 

It  never  did  come  to  such  an  issue  until  the  reign  of 
Jackson.  At  that  epoch  the  first  announcement  of  the 
doctrine  of  centralism  in  its  entirety  was  set  forth  in 
an  obscure  opinion  upon  an  unimportant  matter — The 
Jewels  of  the  Princess  of  Orange,  2  Opin.  482  (1831). 
These  jewels,  as  has  been  related  before,  were  stolen 
from  the  Princess  by  one  Polari,  and  were  seized  by 
the  officers  of  the  United  States  Customs  in  the  hands 
of  the  thief.  Representations  were  made  to  the  Presi- 
dent of  the  United  States  by  the  Minister  of  the  Nether- 
lands of  the  facts  in  the  matter,  which  were  followed 
by  request  for  return  of  the  jewels.  In  the  meantime 
the  District  Attorney  was  prosecuting  condemnation 
proceedings  in  behalf  of  the  United  States  which  he 
showed  no  disposition  to  abandon.  The  President  felt 
himself  in  a  dilemma,  whether  if  it  was  by  statute  the 
duty  of  the  District  Attorney  to  prosecute  or  nor,  the 
President  could  interfere  and  direct  whether  to  proceed 
or  not. 

The  opinion  was  written  by  Taney,  then  Attorney- 
General;  it  is  full  of  pertinenl  illustrations  as  to  the 
necessity  in  an  administration  of  full  power  in  the  chief 
executive  as  the  concomitant  of  his  full  responsibility. 
It  concludes:  If  it  should  be  said  that,  the  District 
Attorney  having  the  power  to  discontinue  the  prosecu- 
tion, there  is  no  necessity  for  inferring  a  right  in  the 

(231) 


§    09  ADMINISTRATIVE    LAW.  [Ch.    S 

President  to  direct  him  to  exercise  it — I  answer  that 
the  direction  of  the  President  is  not  required  to  com- 
municate any  new  authority  to  the  District  Attorney, 
but  to  direct  him  in  the  execution  of  a  power  lie  is  ad- 
mitted to  possess.  The  most  valuable  and  proper  meas- 
ure may  often  be  for  the  President  to  order  the  District 
Attorney  to  discontinue  prosecution.  The  District  At- 
torney might  refuse  to  obey  the  President's  order ;  and  if 
he  did  refuse,  the  prosecution,  while  he  remained  in  of- 
fice, would  still  go  on;  because  the  President  himself 
could  give  no  order  to  the  court  or  to  the  clerk  to  make 
any  particular  entry,  fie  could  only  act  through  his  sub- 
ordinate officer  the  District  Attorney,  who  is  responsible 
to  him  and  who  holds  his  office  at  his  pleasure.  And 
if  that  officer  still  continue  a  prosecution  which  the 
President  is  satisfied  ought  not  to  continue,  the  removal 
of  the  disobedient  officer  and  the  substitution  of  one 
more  worthy  in  his  place  would  enable  the  President 
through  him  faithfully  to  execute  the  law.  And  it  is 
for  this  among  other  reasons  that  the  power  of  remov- 
ing the  District  Attorney  resides  in  the  President.  This 
opinion  shows  a  comprehension  of  the  general  problem 
seldom  equalled  in  any  discussion  of  the  nature  of  ad- 
ministration. 

Moreover  this  opinion  came  at  the  psychological  mo- 
ment. President  Jackson  had  just  begun  his  war  upon 
the  United  States  Bank.  As  the  law  then  stood  the 
Secretary  of  the  Treasury  had  the  management  of  the 
funds  of  the  government  under  the  direction  of  Con- 
gress. Congress  had  just  resolved  that  the  deposits 
might  with  safety  be  continued  in  the  Bank  of  the 
United  States;  Duane.  the  then  Secretary  of  the  Treas- 
(232) 


Ch.    8]  THEORY  OF  ADMINISTRATION  <    6S) 

in  y,  had  informed  the  President  that  as  lie  was  unable 
to  share  the  President's  view  he  must  continue  the  de- 
posits upon  his  own  responsibility.  President  Jack- 
son immediately  returned  the  letter  to  liim  as  unbecom- 
ing in  one  of  his  position,  curtly  refused  all  further  dis- 
cussion, and  asked  him  for  a  decisive  answer  to  the 
question  whether  he  would  obey.  Duane  refused  ;  where- 
upon Jackson  sent  him  his  dismissal.  On  the  very 
same  day,  Jackson  appointed  Taney  to  be  Secretary 
of  the  Treasury;  and  Taney  gave  the  necessary  order 
for  the  removal  of  the  deposits  without  delay.  Before 
the  next  Congress,  Taney  justified  his  action  as  within 
discretion  vested  in  him  by  law.  and  his  obedience  as 
the  duty  owed  by  him  to  the  President  as  the  chief  execu- 
tive. 

This  account  of  these  events  is  worth  a  hundred  cases 
from  the  law  reports.  The  President  it  appears  has  the 
power  in  all  matters  whatsoever  to  force  any  officer 
whatsoever  to  do  any  act  which  the  officer  has  power  to 
do.  He  can  dictate  in  all  matters,  because  he  has  the 
power  of  instant  dismissal  without  giving  reasons  there- 
for, and  thereupon  the  right  of  immediate  appointment 
without  limitation  therein.  And  this  is  true  to  a  greater 
or  to  a  lesser  extent  of  the  power  of  every  superior  over 
every  inferior  at  every  step  in  the  hierarchy  of  a  cen- 
tralized administration.  Might  makes  right.  What- 
ever the  superior  commands  will  be  done  by  the  inferior 
because  of  this  sanction.  An  administration  which  is 
centralized  in  its  organization  will  always  prove  t<>  be 
centralized  in  its  action.  It  cannot  work  out  other 
wise.54 

»  Lower. — Smith   v.   Strobach,   50  Ala.   462;    Danley   v.   Whiteley, 

(233) 


"§    70  ADMINISTRATIVE    LAW.  [£h.    g 

§  70.     Higher. 

Since  that  day  when  Jackson  removed  the  Secretary 
of  the  Treasury  in  order  to  effect  the  withdrawal  of 
iIm-  deposits  by  the  appointment  of  a  new  Secretary  of 
the  Treasury,  no  one  has  doubted  but  that  the  federal 
administratioE  was  centralized  to  every  intent,  and  pur- 
pose. But  the  argument  that  all  that  was  done  was  in 
accordance  with  a  proper  theory  of  administration  was 
not  developed  in  a  complete  form  until  ninth  later.  In- 
deed, even  today  it  is  difficult  to  find  precise  cases  in 
point  which  discuss  the  consequences  of  centralized  ad- 
ministration. 

The  opinion  upon  the  Memorial  of  Captain  Meigs,  9 
Opin.  462  (I860),  marks  a  distinctive  advance  in  the 
discussion.  Congress  in  1S(>0  passed  an  appropriation 
act  containing  among  other  clauses  an  appropriation 
for  the  completion  of  the  Washington  aqueduct  of  five 
hundred  thousand  dollars,  to  be  expended  according  to 
the  plans  and  estimates  of  Captain  Meigs,  and  under 
his  superintendence.  Captain  Meigs  in  his  memorial 
set  forth  that  litis  appropriation  was  granted  by  Con- 
gress upon  his  assurance  of  its  sufficiency  and  upon 
the  express  condition  that  it  should  be  expended  under 
his  supervision,  lie  added  that  the  purpose  of  the  grant 
was  only  on  condition  that  its  expenditure  should  he 
made  under  his  effective  control,  guided  by  his  experi- 
ence, a  high  compliment  to  his  ability.  He  then  com- 
plained that  by  assignment  of  another  officer  to  take  an 

14  Ark.  687;  Turner  v.  Melony,  13  Cal.  621;  State  v.  Gamble,  13 
Fla.  9;  Shaw  v.  Macon,  21  Ga.  280;  State  v.  Lawrence,  3  Kan.  95; 
State  v.  Bourgeois,  47  La.  Ann.  184;  Magruder  v.  Swann,  25  Md. 
173;  State  v.  Secretary  of  State,  33  Mo.  293:  People  v.  Schuyler. 
79  N.  Y.  189;    Davis  v.  State.  35  Tex.  118. 

(234^ 


Ch     8]  THEORY  OF  ADMINISTRATION.  £    70 

important  part  in  the  superintendence  of  the  work  the 
War  Department  had  permitted  a  clear  evasion  of  the 
law,  and  a  violation  of  the  condition  of  the  appropria- 
tion. Altogether  this  is  a  rather  extraordinary  docu- 
ment, as  one  sees. 

The  advice  of  Attorney  General  Black  is  without 
hesitation:  As  Commander-in-Chief  of  the  army,  it  is 
your  right  to  decide  according  to  your  own  judgment 
what  officers  shall  perform  any  particular  duty,  and  as 
the  supreme  executive  magistrate,  you  have  power  of 
appointment,  Congress  could  not  if  it  would  take  away 
from  the  President  or  in  any  way  diminish  the  author- 
ity conferred  upon  him  by  the  Constitution.  This  clause 
of  the  appropriation  bill  was  not  intended  to  appoint 
Captain  Meigs  as  Chief  Engineer  of  the  aqueduct  nor 
was  it  meant  to  interfere  with  your  authority  over 
him  or  any  other  of  your  military  subordinates.  But 
Captain  Meigs  now  asserts  that  this  which  you  believe 
to  be  a  recommendation  was  in  fact  a  condition,  a  most 
important  part  of  the  law  itself.  He  thinks  at  all 
events  that  you  must  either  let  the  appropriation  be 
expended  by  him  according  to  his  own  plan  of  opera- 
tion, or  else  let  the  work  stand  still.  But  this  is  a  mani- 
fest error.  If  Congress  had  really  intended  to  make 
him  independent  of  you,  that  purpose  could  not  be  ac- 
complished in  this  indirect  manner  any  more  than  if 
it  were  attempted  directly.  Congress  is  vested  with 
legislative  power;  the  authority  of  the  President  is  ex- 
ecutive. Neither  has  a  right  to  interfere  with  the  func- 
tions of  the  other.  Indeed,  this  must  be  so;  otherwise 
there  would  be  two  administrations :  the  administration 
of  the  President,  and  the  administration  of  the  Captain. 

(235) 


§   70  ADMINISTRATIVE    LAW.  [Ch.    8 

Another  opinion,  more  useful  because  more  definite, 
is  that  in  the  Las  Animas  Grant,  15  Opin.  94  ( 1870  i . 
One  Colonel  Craig  applied  to  the  President  for  an  or- 
der directing  the  Surveyor  General  of  Colorado  to  issue 
to  him  a  parcel  of  land  included  in  the  Las  Animas 
grant  in  accordance  with  the  decision  of  the  Register 
and  Receiver  General  of  the  Land  District  of  that  ter- 
ritory. The  question  whether  the  executive  should  take 
any  action  upon  this  application  was  referred  to  the 
Attorney  General,  who  found  that  Colonel  Craig  was 
entitled  according  to  his  petition.  The  only  question 
left  was  whether  the  President  had  any  function  to  in- 
terfere in  such  a  case,  even  under  these  circumstances. 

Attorney  General  PlERREPONT  advised  that  the  Presi- 
dent had  a  certain  function  in  all  such  appeals.  This 
he  defined  in  these  terms:  The  case  may  he  regarded 
as  an  appeal  from  a  decision  of  the  head  of  the  Interior 
Department  touching  the  authority  of  :i  subordinate 
officer  in  that  Department:  and  the  point  now  to  be 
considered  is,  can  the  President  entertain  this  appeal? 
After  much  reflection  I  am  of  opinion  that  the  ap- 
peal is  one  which  may  he  entertained  by  the  President. 
It  presents  a  question  concerning  the  authority  of  a 
subordinate  executive  officer  over  a  particular  subject. 
The  President  in  the  exercise  of  his  general  superin- 
tendence may  interfere  to  restrain  an  officer  from  as- 
suming an  authority  which  does  not  belong  to  him.  as 
he  unquestionably  may  to  compel  the  officer  to  perform 
a  duty  which  does  belong  to  him.  The  functions  of  the 
President,  viewed  with  reference  to  such  superintend- 
ence, seem  to  me  to  include  as  well  the  power  of  re- 
quiring various  officers  of  the  executive  department  of 
the  government  to  keep  within  the  proper  limits  of  their 
(236) 


Ch.    8]  THEORY  OF  ADMINISTRATION.  §   71 

authority,  as  the  power  of  requiring  them  to  discharge 
the  public  trust  imposed  upon  them. 

The  law  on  this  point  is  somewhat  elaborate;  but  it 
represents  without  doubt  the  present  rule  of  adminis- 
trative law  upon  this  vexed  subject.  Without  such  a 
superintendence  in  the  head  of  the  administration  there 
would  be  no  centralism.  At  the  same  time,  without  or- 
der in  the  process  by  which  the  President  is  reached, 
all  the  business  of  administration  might  be  thrown  upon 
the  President  in  first  instance.  The  precise  rule,  then, 
in  centralized  administration  is  that  if  appeal  is  al- 
lowed it  must  go  through  the  regular  order  of  advance- 
ment from  inferior  to  superior  at  every  step  in  the  ad- 
ministrative hierarchy.55 

§  71.     Conclusion. 

Centralism  and  decentralisin  are  but  modi's  of  ad- 
ministration, after  all.  The  methods  used  in  adminis- 
tration are  about  the  same  in  any  administration  of 
any  sort.  It  is  to  these  methods  of  administration  to 
which  attention  is  directed  henceforward.  It  is  with- 
out doubt  impossible  to  make  perfect  distinctions  in 
the  varieties  of  administrative  action ;  but  the  attempt 
will  not  be  without  advantage  in  gaining  a  near  view 
of  the  administration  at  its  work.  Upon  such  a  near 
view  the  methods  are  various.  What  arrests  attention 
in  such  an  examination  is  that  the  administration  seems 
at  one  time  or  another  to  act  as  a  complete  governmental 
body  in  the  enforcement  of  the  law. 

ss  Highee. — Chisholm  v.  McGehee,  41  Ala.  192;  Hawkins  v.  Gov- 
ernor, 1  Ark.  570;  Fremont  v.  Crippen,  10  Cal.  212;  State  v.  Craw- 
ford, 28  Fla.  441;  State  v.  Welsh,  109  la.  19;  State  v.  Wrotnowski, 
17  La.  Ann.  156;  People  v.  McClay,  2  Neb.  7;  People  v.  Roosevelt, 
168  N.  Y.  488;  State  v.  Staley,  38  Oh.  St.  259;  Commonwealth  v. 
Perkins,  7  Pa.  St.  42. 

(237) 


CHAPTER  IX. 

THE   AUTHORITY   OF   THE   ADMINISTRATION. 


72. 

Introduction. 

73. 

The  State  as  Principal. 

74. 

Limitation. 

75. 

Implication. 

76. 

Liability. 

77. 

Relation. 

78. 

The  Officer  as  Agent. 

79. 

Authorization. 

80. 

Interpretation. 

81. 

Responsibility. 

82. 

Subjection. 

83. 

Conclusion. 

§  72.     Introduction. 

The  one  central  fad  in  the  law  governing  adminis- 
tration is  that  the  officer  is  an  agent.  That  is  the  gen- 
eral situation.  The  stale  may  be  regarded  as  the  prin- 
cipal in  behalf  of  which  the  agent  acts.  The  officer 
may  be  regarded,  then,  as  the  agent  when  he  acts  as 
an  officer.  To  a  certain  extent,  then,  the  law  of  agency 
is  applicable  to  the  processes  of  the  administration. 
That  indeed  was  remarked  in  the  discussion  of  the  theory 
of  the  administration.  Ii  is  true,  that  this  public  agency 
is  different  from  private  agency;  but  in  so  far  as  there 
is  a  difference,  it  exists  because  of  the  policy  in  the  situ- 
ation. 

§  73.     The  state  as  principal. 

In  the  eye  of  tin1  law.  when  the  officer  acts  in  behalf 
of  the  state  he  is  an  official  :  when  an  officer  acts  in  his 
i  238  I 


Ch.    9]  ITS  AUTHORITY.  <    73 

own  behalf,  he  is  a  person.  In  so  far  as  an  officer  ex- 
ercises public  functions,  the  Theory  is  he  does  so  by 
order  of  the  state  as  the  agent  of  the  state;  in  so  far 
as  the  officer  purports  to  exercise  public  functions,  the 
theory  is  he  does  nothing  unless  he  has  the  explicit 
authority  of  the  state  to  fall  back  upon.  That  is,  it 
is  all  a  question  of  actual  authority.  If  an  officer  has 
authority  he  acts  in  behalf  of  the  state,  not  otherwise; 
if  he  has  no  authority  he  subjects  the  state  to  no  lia- 
bility. 

The  rule  in  private  agency  is  that  the  agent  may 
bind  his  principal  within  the  scope  of  his  authority — 
express  or  implied.  Whether  the  whole  of  that  rule 
is  applicable  to  public  agency  is  the  question.  It  is 
in  the  nature  of  things  that  if  an  officer  has  express 
authority  the  state  will  be  bound  as  his  principal.  But 
how  if  the  officer  has  in  fact  no  express  authority?  Can 
the  parties  who  have  dealt  with  him  show  that  what 
he  did  seemed  to  be  within  his  authority?  This  is  not 
clear;  there  is  a  policy  here  for  the  protection  of  the 
state  against  liabilities  which  it  has  not  expressly  sub- 
mitted itself  to.  This  policy  to  a  certain  extent  abro- 
gates the  rule  of  implied  authority  that  is  found  in 
private  agency.  The  problem  for  discussion  in  this 
chapter  is  how  far  the  state  will  be  made  liable  by  the 
action  of  its  officers.  That  involves  an  examination 
of  the  position  of  the  state  as  a  principal  in  relation 
to  the  position  of  the  officer  as  an  agent.56 

s«  The  State  as  Principal. — Musgrave  v.  Pulido,  5  App.  Cas.  102; 
O'Brien  v.  Reg.,  4  Can.  Sup.  Ct.  529;  Lee  v.  Munroe,  7  Cranch  366; 
Hawkins  v.  United  States,  96  U.  S.  691;  Comer  v.  Bankhead,  70 
Ala.  493;  Fluty  v.  School  District,  49  Ark.  94;  Butler  v.  Bates,  7  Cal. 
136:  State  v.  Hartford.  50  Conn.  89:  Koones  v.  District  of  Columbia, 

(239) 


^    74  ADMINISTRATIVE    LAW.  [Ch.   «) 

§  74.     Limitation. 

The  principle  of  law  governing  in  public  agencies 
that  one  is  confronted  with  at  this  stage  is  somewhat 
startling.  In  Baltimore  v.  Eschbach,  18  Md.  27b"  (1861 1 . 
that  special  rule  is  laid  down  in  its  most  extreme  form. 
Under  the  ordinances  of  the  city  of  Baltimore  the  City 
Commissioner  could  make  contracts  for  grading  and 
paving  and  assess  taxes  therefor  in  two  classes  of  cases  : 
First  upon  the  application  of  a  majority  of  front  feet 
win-re  the  street  had  been  condemned;  second  upon 
the  like  application  of  all  of  the  front  feet  where  the 
street  had  not  been  condemned.  A  contractor  made 
a  contract  with  the  City  Commissioner  for  grading  and 
paving  a  certain  street.  As  a  matter  of  fact  the  street 
had  not  been  condemned,  and  only  a  majority  of  lie 
!i'oni  feel  had  applied.  The  city,  upon  that  defense, 
now  refused  to  pay  for. the  work  that  had  been  done 
upon  that  contract. 

The  court  by  COCHRAN  held  the  city  nut  liable:  The 
fad  that  the  conn  act  made,  related  to  a  subject  with- 
in  the  scope  of  the  powers  of  the  Commissioner  dots 

4  Mackey  339;  Hawkins  v.  Mitchell.  34  Fla.  405:  Penitentiary  Co.  v. 
Gordon,  85  Ga.  160;  Van  Dusen  v.  People,  78  111.  645;  McCaslin  v. 
State,  99  Ind.  428;  Clark  v.  Des  Moines,  19  la.  199;  Commissioners  v. 
Smith,  50  Kan.  350;  Baltimore  v.  Eschbach,  18  Md.  276;  Klein  v. 
Pipes,  43  La.  Ann.  359;  Hubbard  v.  Woodsum,  87  Me.  88;  Thomas  v. 
Owens,  4  Md.  189;  Vose  v.  Deane,  7  Mass.  280;  Benalleck  v.  Peo- 
ple, 31  Mich.  200;  Sanborn  v.  Neal.  4  Minn.  126;  State  v.  Hays, 
52  Mo.  578;  State  v.  Weston,  6  Neb.  16;  Sargent  v.  Gilford,  66 
N.  H.  543;  Dock  Co.  v.  Trustees,  32  N.  J.  Eq.  434;  McDonald  v. 
New  York,  68  N.  Y.  23;  Clodfelter  v.  State,  86  N.  C.  51;  State  v.  Han- 
cock Co.  Com'rs,  11  Oh.  St.  183;  Snow  v.  Deerfield,  78  Pa.  St.  181; 
In  re  State  House  Fund.  19  R.  I.  393;  Morton  v.  Comptroller  General. 
4  S.  C.  430;  State  v.  Strickland,  3  Head,  644;  Silliman  v.  Fredericks- 
burg R.  R.,  27  Grat.  119:  Boyers  v.  Crane.  1  W.  Va.  176;  State  v 
Hastings,   10  Wis.   525. 

(240) 


Ch.    9]  ITS  AUTHORITY.  §   74 

qo1  make  it  obligatory  upon  the  city,  if  there  was  want 
of  specific  power  to  make  it.  Although  a  private  agent 
acting  in  violation  of  specific  instructions,  yet  within 
the  scope  of  general  authority,  may  bind  his  principal, 
the  rule  as  to  the  like-  act  of  a  public  agent  is  other- 
wise. The  City  Commissioner,  upon  whose  determina- 
tion to  grade  and  pave,  the  contract  was  made,  was  the 
public  agent  of  a  municipal  corporation  clothed  with 
powers  and  duties  especially  denned  and  limited  by  or- 
dinances bearing  the  character  and  effect  of  public  laws, 
ignorance  of  which  can  be  presumed  in  favor  of  no  one 
dealing  with  him.  As  this  contract  was  entered  into 
by  the  Commissioner  on  behalf  of  the  city  under  cir- 
cumstances which  gave  him  no  power  to  bind  it,  we 
think  it  cannot  be  held  liable  in  any  action. 

This  rule  is  stated  repeatedly  in  this  extreme  form. 
No  government  can  be  estopped  from  denying  the  valid- 
ity of  unauthorized  acts  of  its  officers.  Again,  officers 
cannot  dispense  with  a  requirement  of  law  by  any 
waiver.  Every  person,  it  is  the  theory,  is  bound  at  his 
peril  to  know  the  extent  of  the  authority  of  public  offi- 
cers. Contracts  thus  made  without  the  authority  of 
law  are  no  more  than  void:  and  such  void  agreemenl 
is  ineffectual  to  fix  any  liability  upon  the  government. 
Just  as  much  as  a  contract  made  by  an  officer  in  direct 
violation  of  a  law  is  void,  so  a  contract  that  is  made 
in  a  way  not  authorized  by  law  is  held  void.  To  a  cer- 
tain extent  this  is  the  law  governing  the  authority  of 
public  officers — that  they  only  have  in  effect  such  au- 
thority as  they  may  show  in  fact.  Another  instance 
is  Kooncs  v.  Districl  of  Columbia,  4  Mackey,  339  (1886). 
The  appellant  averred  thai  on  a  certain  day  he  paid  the 

(241) 
Adm.  Law — 16. 


I    74  ADMINISTRATIVE    LAW.  J  [Ch.    9 

taxes  which  were  due  by  him  to  the  District  of  Colum- 
bia iu  a  check  for  four  hundred  and  ninety  dollars  on 
a  bank  in  Washington,  which  bank  was  open  on  the 
day  the  check  was  delivered  and  on  the  next  day.  The 
third  day.  however,  it  suspended  payment;  and  the  Col- 
lector of  Taxes,  not  having  presented  the  check,  it  was 
claimed,  therefore,  by  the  complainant,  that  he  should 
be  credited  with  the  amount  of  the  check  by  reason  of 
the  default  of  the  Collector  in  not  presenting  the  check 
in  due  season,  according  to  the  mercantile  law,  for  pay- 
ment at  that  bank. 

In  disposing  of  this  contention  Mr.  Justice  Merrick 
said  :  The  doctrine  which  expands  an  agency  by  reason 
of  the  ads  and  dealings  of  the  parties  from  time  to 
time  has  no  application  whatsoever  to  the  official  ads 
of  a  public  officer.  Everybody  knows  the  public  law 
or  is  charged  with  knowledge  of  it;  the  extent  of  the 
powers  of  thai  officer  and  his  superior  officers  so  to  speak 
cannot  qualify  except  so  far  as  the  law  has  delegated 
to  them  a  power  to  control  or  modify  or  expand  his 
legal  obligations.  Hence,  there  can  be  no  such  thing 
as  a  presumption  of  agency  growing  out  of  the  deal- 
ings of  a  public  officer  in  respect  to  his  public  duties; 
because  whatever  presumption  might  arise  in  favor  of 
a  delegated  authority  from  an  outward  act  of  deal- 
ing, so  far  as  the  public  officer  is  concerned  that  pre- 
sumption is  repelled  by  the  known  law  of  the  land, 
which  known  law  of  the  land  limits,  defines  and  bounds 
his  power,  and  qualities  and  corrects  any  presumption 
of  agency  which  might  otherwise  arise  out  of  those  facts 
and  dealings.  This  is  so  because  the  authority  of  a 
(242) 


Ch.    9]  ITS  AUTHORITY.  §   75 

public  officer  must  be  derived  directly  or  indirectly  from 
some  law  or  other.57 

§  75.     Implication. 

lu  any  question  of  interpretation,  general  legal  no- 
tions must  be  used.  The  determination  whether  a  cer- 
tain action  is  or  is  not  within  the  authority  of  a  public 
agent  depends  to  a  large  extent,  therefore,  upon  the 
ordinary  legal  conception  of  the  scope  of  a  defined  au- 
thority. The  general  principles  of  agency  are  of  much 
use  here  because  the  problem  in  the  large  is  the  same 
both  for  public  agencies  and  for  private  agencies.  The 
difference  of  importance  at  this  point  between  the  law 
governing  public  agency  and  the  law  governing  pri- 
vate agency  is  the  one  that  was  insisted  upon  at  the 
outset.  Xo  implication  can  give  an  officer  power  to 
bind  the  state,  but  implication  may  give  an  agent  power- 
to  bind  his  principal.  However,  the  question  as  to  the 
extent  to  which  an  express  authority  goes  is  a  ques- 
tion of  construction  which  is  the  same  for  both  cases. 

A  distinction  is  to  be  taken  at  this  point  which  is 
well  brought  out  in  Thompson's  Case,  0  Ct.  of  CI.  187 
(1873).  During  the  winter  of  1861  the  Quarter-Mas- 
ter's Department   at  Nashville,  Tennessee,  did  not  ad- 

5T  Limitation. — Floyd  Acceptances,  7  Wall.  666;  Coler  v.  Cleburne, 
131  U.  S.  173:  Fluty  v.  School  District,  49  Ark.  94;  Sutro  v.  Pettit,  74 
Cal.  332:  Mulnix  v.  Ins.  Co.,  23  Colo.  71;  Koones  v.  District  of  Colum- 
bia, 4  Mackey,  339;  Penitentiary  Co.  v.  Gordon,  85  Ga.  160;  Hull  v. 
Marshall  Co.,  12  la.  142:  Van  Dusen  v.  People,  78  111.  645;  Clark  v. 
Des  Moines,  19  la.  199;  Baltimore  v.  Eschbach,  18  Md.  276;  Murray 
v.  Carothers.  1  Met.  (Ky.)  71;  Mitchell  v.  County  Com'rs.  24  Minn. 
4-~9;  State  v.  Hays,  52  Mo.  578;  Lebscher  v.  Custer  Co.  Com'rs.  9 
Mont.  315;  Brumfiekl  v.  Douglas  Co.  Com'rs,  2  Nev.  65;  Backman  v. 
Charlestown,  42  N.  H.  125;  McDonald  v.  New  York.  68  N.  Y.  23;  Sooy 
v.  State,  39  N.  J.  L.  135:  Day  L.  &  C.  Co.  v.  State,  68  Tex.  526.- 

T243) 


S    75  ADMINISTRATIVE    LAW.  [Ch.  9 

vertise  for  proposals,  but  bought  mules  iu  the  open 
market.  The  Chief  Quarter-Master  was  iu  constant  com- 
munication with  the  Commanding  General,  but  no  for- 
mal order  was  ever  issued  declaring  that  an  emergency 
existed.  According  To  statate  then  in  force,  there  must 
be  held  a  public  letting  of  all  contracts  except  in  the 
case  of  actual  exigency.  The  Quarter-Master's  Depart- 
ment in  tii is  ease  had  contracted  for  one  thousand  mules, 
of  which  two  hundred  had  been  delivered  when  the  war 
came  to  au  end.  Thereupon,  the  United  States  refused 
to  take  the  other  eight  hundred  mules. 

Nott,  Judge  of  the  Court  of  Claims,  held  the  United 
States  liable:  A  contractor  dealing  with  the  govern- 
ment is  chargeable  with  notice  of  all  limitations  of 
authority  which  the  statutes  place  upon  the  powers  of 
public  officers.  But  there  is  a  difference  between  those 
powers  which  are  expressly  defined  by  statute  and  those 
which  rest  upon  the  discretion  confided  by  law  to  an 
officer.  The  distinction  should  be  made  between  the 
ease  where  a  statute  expressly  defines  the  powers, — there 
il  is  notice  to  all  the  world;  but  where  a  statute  con- 
fides a  discretion  to  an  officer,  a  party  dealing  with  him 
in  good  faith  may  assume  that  the  discretion  is  prop- 
erly exercised.  And  if  the  discretion  is  vested  in  a 
superior  officer,  while  the  transaction  is  with  his  sub- 
ordinate, the  contractor  may  assume  that  the  discre- 
tion in  like  manner  has  been  properly  exercised,  and 
that  the  subordinate  is  aeting  in  accordance  with  his 
superior's  orders  and  carrying  out  the  exercise  of  the 
superior's  discretion. 

An  obvious  case  along  this  line  is  Myerle  v.  United 
States,  33  Ct.  of  CI.  1  (1897).  The  claimant  had  en- 
(244) 


Oh.    9]  ITS  AUTHORITY.  §  75 

tered  into  a  contract  with  the  Secretary  of  the  Navy 
to  do  important  work  of  construction.  There  were  va- 
rious modifications  and  changes  from  time  to  time.  In 
the  end,  the  part  of  the  appropriation  that  had  been 
assigned  by  the  department  to  this  part  of  the  naval 
construction  ran  out.  The  contractor  acted  in  good 
faith  from  first  to  last  under  the  assumption  that  the 
Secretary  of  the  Navy  had  due  authorization  of  the 
law  and  without  knowledge  of  any  deficiency  that  had 
resulted  from  the  changes  in  the  appropriation.  The 
issue  was  whether  the  United  States  was  liable  for  the 
work  that  had  been  done,  which  could  only  he  if  the 
Secretary  had  authority. 

The  judgment  of  the  Court  of  Claims  was  given  by 
Davis:  It  appears  that  the  contract,  whether  author- 
ized at  its  inception  or  not,  had  been  brought  repeated- 
ly to  the  attention  of  Congress;  that  that  body  had 
authorized  payments  to  be  made  upon  the  contract, 
and  that  the  Navy  Department  had  made  payments 
from  time  to  time  upon  it.  The  work  was  done.  The 
contract  we  hold  was  made  by  competent  authority  and 
was  binding  upon  the  parties.  The  services  performed 
by  this  contractor  were  under  general  appropriations 
covering  several  vessels;  he  was  not  therefore  charge- 
able with  knowledge  as  to  the  Secretary's  apportionment 
of  the  appropriation  between  him  and  other  contractors 
for  other  vessels  built  from  the  same  fund.  Tt  lias 
been  heretofore  decided  that  persons  contracting  with 
the  government  for  partial  service  under  general  ap- 
propriations are  nol  hound  to  know  the  condition  of 
tin- appropriation  account  at  (lie  treasury. 

The  extent  of  the  authority  of  an  officer  then  depends 

(245) 


§    76  ADMINISTRATIVE    LAW.  [Ch.    9 

upon  the  law  which  defines  his  authority.  This  law 
may  be  general  or  specific.  If  general,  the  authority  of 
the  officer  is  general;  if  special,  the  authority  of  the 
officer  is  special.  That  is,  this  law  may  give  the  officer 
discretionary  powers,  or  it  may  impose  upon  the  officer 
ministerial  duties.  If  discretionary,  the  officer  has  actual 
authority  to  do  in  behalf  of  the  state  anything  that  is 
within  the  scope  of  that  authority;  if  ministerial,  the 
officer  has  no  authority  to  do  anything  not  within  the 
scope  of  the  authority.  There  is  no  difference  in  the 
law  here.  It  is  only  a  difference  in  fact.  The  whole 
problem,  then,  is  the  application  by  construction  of  the 
law  giving  the  authority  in  any  particular  course  of 
action.58 

§  76.     Liability. 

For  the  reasons  discussed  before,  the  government  is 
not  liable  for  torts  done  by  officers  in  the  course  of 
employment.  No  government  today,  as  has  been  shown, 
holds  itself  liable  for  the  misfeasance  of  officers  in  the 
course  of  administration.  It  would  be  the  ruin  of  the 
state  if  it  held  itself  liable  for  failure  in  administra- 
tion of  any  sort.  A  case  which  shows  the  extent  to 
which  this  principle  will  go  is  Maxmilian  v.  The  Mayor. 
62  N.  Y.  169  (1875).  The  plaintiff  while  attempting 
to  enter  a  street  car  in  the  city  of  New  York  was  struck 
and  killed  by  an  ambulance  which  was  driven  by  an 

58  Implication. — Myerle  v.  United  States,  33  Ct.  of  CI.  1;  Thomp- 
son's Case,  9  Ct.  of  CI.  187;  Barton  v.  Swepston,  44  Ark.  437;  Har- 
ris v.  Gibbins,  114  Cal.  418;  Wright  v.  Nagle,  48  Ga.  367;  State 
v.  Haworth,  122  Ind.  467;  Commissioners  v.  Smith,  50  Kan.  350; 
Backman  v.  Charlestown,  42  N.  H.  125;  Richmond  Co.  Sup'rs  v.  Ellis, 
509  N.  Y.  620;  Silliman  v.  Fredericksburg  R.  R.,  27  Grat.  119. 

(246) 


Ch.    9]  ITS  AUTHORITY.  g    7,, 

employee  of  the  Commissioners  of  Public  Charity.  The 
evidence  showed  that  the  accident  was  caused  by  the 
negligence  of  the  driver  of  the  ambulance  who  was  ar 
the  time  engaged  in  the  performance  of  his  duties.  The 
city  denied  liability,  >\\^-',-  the  ads  were  all  done  in  the 
execution  of  governmental  functions. 

Mr.  Justice  Folgek  held  the  city  not  liable, — he  said 
in  part:  There  are  two  kinds  of  duties  which  are  im- 
posed upon  a  municipal  corporation;  one  is  that  kind 
which  arises  from  a  grant  of  a  special  power,  in  the  ex- 
ercise of  which  the  municipality  is  a  legal  individual : 
the  other  is  of  that  kind  which  arises  or  is  implied  from 
the  use  of  political  rights  under  the  general  law,  in  the 
exercise  of  which  it  is  sovereign.  The  former  power  is 
private  and  is  used  for  private  purposes;  the  latter  is 
public  and  is  used  for  public  services.  The  former  is 
not  held  by  the  municipality  as  one  of  the  political 
divisions  of  the  state.  The  latter  is.  In  the  exercise 
of  the  former  power  and  under  the  duty  to  the  public 
which  the  acceptance  and  tin1  use  of  the  power  involved, 
a  municipality  is  like  a  private  corporation,  and  is  liable 
for  a  failure  to  use  its  power  well,  or  for  any  injury 
caused  by  using  it  badly.  But  where  the  power  is  in- 
trusted to  it  as  one  of  the  political  divisions  of  the  state 
and  is  conferred  not  for  the  immediate  benefit  of  the  mu- 
nicipality but  as  a  means  to  the  exercise  of  the  sovereign 
power,  the  corporation  is  not  liable  for  non-user  nor 
for  mis-user  toward  the  public. 

At  all  events  the  law  upon  the  governmental  side  is 
plain.  Xo  matter  how  apparent  the  negligence  of  the 
public  officer  may  be  in  the  course  of  his  duties,  the 
government    is    in    no    way    responsible.     That    is    true. 

(247) 


§   7(,  ADMINISTRATIVE    LAW.  [Ch.    9 

although  in  a  general  way  it  may  be  said  that  there  is 
no  objection  if  a  municipal  corporation  is  impleaded. 
Liable  a  municipal  corporation  may  be,  but  it  cannot 
be  sued  for  negligence  in  the  course  of  the  administra- 
tion of  its  governmental  functions.  Governments  of 
whatever  degree  can  protect  themselves  by  the  principle 
that  no  tort  done  by  a  public  officer  can  by  possibility 
have  been  authorized  by  a  valid  law. 

The  rule  of  this  section,  indeed,  goes  to  the  furthest 
extent.  So  that  if  a  public  officer  commits  a  positive 
tort  in  the  course  of  executing  the  law,  the  governmental 
ing  peaceably  upon  a  sidewalk  in  the  city  of  Lowell 
1  Allen,  172  (1861).  While  the  plaintiff  was  stand- 
ing peaceably  upon  a  sidewalk  in  the  City  of  Lowell 
two  police  officers  ordered  him  off;  and  upon  his  refusal 
to  go  they  assaulted,  arrested  and  imprisoned  him,  claim- 
ing that  by  so  doing  they  were  only  performing  their 
official  duty.  The  court  held  that  this  was  a  false  ar- 
rest, and  assault  and  battery.  The  plaintiff  now  brings 
the  present  action  against  the  city  to  recover  his  dam- 
ages for  this  imprisonment. 

Air.  Justice  Bigelow  disposed  of  the  case  in  this  way: 
Police  officers  can  in  no  sense  be  regarded  as  agents 
or  servants  of  the  city.  Their  duties  are  of  a  public 
nature.  Their  appointment  devolved  on  cities  and  towns 
by  the  legislature  as  a  convenient  method  of  exercising 
the  function  of  government;  but  this  does  not  render 
them  liable  for  their  unlawful  or  negligent  acts.  For 
the  mode  in  which  they  exercise  their  powers  and  duties 
the  city  or  town  cannot  be  held  liable.  The  enforce 
ment  of  the  laws  and  other  similar  powers  and  duties 
(248) 


Ch.   9]  ITS  AUTHORITY.  §   77 

with  which  police  officers  are  intrusted  are  derived  from 
the  law.59 

§  77.     Relation. 

The  reason  in  all  this  is  that  public  policy  which 
must  shape  the  law  in  every  system  of  government. 
That  public  policy  it  is  which  relieves  the  state  of  re- 
sponsibility for  acts  done  in  the  course  of  administra- 
tion without  authority.  A  leading  case  in  this  rule 
is  Dunlop  v.  Munroe,  7  Cranch,  212  (1812).  This  was 
a  suit  against  the  Postmaster,  the  superior  officer,  for 
the  loss  of  a  letter  by  the  neglect  of  a  carrier,  the  inferior 
officer.  In  the  declaration  the  person  who  had  lost  the 
letter  charged  that  it  was  lost  by  the  negligence  of  the 
Postmaster. 

Upon  that  point  Mr.  Justice  Johnson  said:  The 
third  exception  is  intended  to  raise  the  question  how 
far  the  Postmaster  is  liable  for  the  neglect  of  his  as- 
sistants; but  connected  with  the  pleading  it  presents 
another  and  x^vy  different  question,  to-wit,  whether 
when  the  suit  is  taken  upon  the  neglect  of  the  Post- 
master himself,  it   is  competent  to  give  in  evidence  the 

■>■■>  Liability. — O'Brien  v.  Reg.,  4  Can.  Sup.  Ct.  529;  Gibbons  v. 
United  States,  8  Wall.  269;  Whiteside  v.  United  States,  93  U.  S.  247; 
Workman  v.  New  York,  179  U.  S.  552;  State  v.  Hill,  54  Ala.  67;  Perry 
v.  Hyde,  10  Conn.  329;  Love  v.  Atlanta,  95  Ga.  129;  Marshall  Co. 
Sup'rs  v.  Cook,  38  HI.  44;  Summers  v.  Daviess  Co.  Com'rs,  103  Ind. 
262;  Ogg  v.  Lansing,  35  la.  495;  Brown  v.  Vinalhaven,  65  Me.  402; 
Boehm  v.  Baltimore,  61  Md.  259;  Buttrick  v.  Lowell,  1  Allen,  172; 
Miller  v.  Minneapolis,  75  Minn.  131;  Hale  v.  Woods.  10  N.  II.  170; 
Wild  v.  Paterson,  47  N.  J.  L.  4(16;  Maxmilian  v.  New  York,  62  N.  Y. 
169;  Wheeler  v.  Cincinnati,  19  Oh.  St.  19;  State  v.  Bevers,  86  N.  C. 
588;  McDade  v.  Chester,  117  Pa.  St.  414;  Wixon  v.  Newport,  13  R. 
I.  454;  Horton  v.  Nashville,  4  Lea.  17:  Mulcairns  v.  Janesvill<\  67 
Wis.  24. 

(249) 


§   77  ADMINISTRATIVE    LAW.  [Ch.    9 

neglect  of  the  assistants  acting  under  him.  Now.  the 
distinction  between  the  relation  of  the  Postmaster  to 
his  sworn  assistants  acting  under  him  and  between  mas- 
ter and  servant  generally,  has  long  been  settled;  and 
although  the  latter  relation  might  sanction  the  admis- 
sion of  such  evidence,  we  are  unanimously  of  opinion, 
that,  if  it  is  intended  to  charge  a  Postmaster  for  the 
negligence  of  his  assistants,  the  pleadings  must  be  made 
up  according  to  the  case;  and  his  liability  then,  will 
only  result  from  his  own  neglect  in  not  properly  superin- 
tending the  discharge  of  the  duties  of  his  office  by  them. 

A  late  case  to  the  same  effect  is  Robertson  v.  Sichel, 
127  U.  S.  507  (1888).  The  object  of  this  suit  was  to 
recover  damages  for  the  loss  of  the  contents  of  a  trunk. 
The  trunk  was  detained  by  a  customs  officer  for  ap- 
praisal. During  the  period  of  custody  it  was  kept  on 
the  pier  instead  of  being  scut  to  the  public  store:  so 
that  when  the  pier  was  burned  by  an  accident al  tire 
the  trunk  was  destroyed.  The  owner  sued  the  Collect- 
or of  the  Port  of  New  York  for  this  negligence.  At  the 
close  of  the  case  for  the  plaintiff,  the  defendant  asked 
the  court  to  direct  a  verdict  for  him  upon  the  ground 
that  the  only  negligence  shown  was  that  of  subordi- 
nate officers,  which  ought  not  to  be  imputed  to  the  su- 
perior officers. 

Mr.  Justice  Blatchford  reviewed  the  authorities: 
The  defendant  was  not  liable  for  the  wrong,  if  any. 
committed  by  Ins  subordinates.  There  is  nothing  in 
the  evidence  to  connect  the  defendant  personally  witli 
such  wrong.  Xo  evidence  was  given  that  the  officers 
in  question  were  not  competent  or  were  not  properly 
selected  for  their  respective  positions.  A  public  offi- 
(250) 


Ch.   9]  ITS  AUTHORITY.  §   78 

cer  is  not  responsible  for  the  misfeasances  or  positive 
wrongs  or  for  the  nonfeasances  or  omissions  of  duty 
of  the  sub-agents  or  other  officers  properly  employed 
by  or  under  him  in  the  discharge  of  his  official  duty. 
Competent  persons  could  not  be  found  to  fill  positions 
of  the  kind  if  they  knew  they  would  be  held  liable  for 
all  the  torts  and  wrongs  committed  by  a  large  body  of 
subordinates  in  the  discharge  of  duties  which  it  would 
be  utterly  impossible  for  the  superior  officer  to  discharge 
in  person.60 

§  78.     The  officer  as  agent. 

It  must  be  obvious  now  that  office  is  not  quite  like 
agency.  The  private  agent  may  subject  his  principal 
to  liability  in  contract  or  in  tort  by  any  act  which  may 
be  said  to  be  within  the  scope  of  his  employment ;  while 
the  public  agent  cannot  submit  his  principal  to  liability 
in  contract  or  in  tort  by  any  act  which  may  not  be  said 
to  be  in  law  within  the  scope  of  his  authority.  That 
is,  while  in  private  agency  all  turns  upon  the  inference 
of  the  scope  of  the  employment,  in  public  agency  all 
turns  upon  the  construction  of  the  authority. 

The  principal  distinction  is  the  same  in  this  topic  as 
in  every  question  of  the  law  governing  administration. 
This  distinction  between  discretionary  powers  and  min- 
isterial duties  it  must  be  obvious  is  the  principal  dis- 
tinction in  this  problem  of  the  application  of  the  law. 

so  Relation—  Raleigh  v.  Goschen  [1898]  1  Ch.  73;  Dunlop  v.  Mun- 
roe,  7  Cranch  242;  Robertson  v.  Sichel,  127  U.  S.  507;  Ely  v.  Par- 
sons, 55  Conn.  100;  Huey  v.  Richardson,  2  Harr.  206;  Scott  Co.  v. 
Fluke,  34  Ta.  317;  Anne  Arundel  Co.  Com'rs  v.  Duvall,  54  Md.  350; 
McKenna  v.  Kimball,  145  Mass.  555;  Donovan  v.  McAlpin,  85  N.  Y. 
185;  Sawyer  v.  Corse,  17  Grat.  230;  Murphy  v.  Holbrook,  20  Oh.  St. 
137;  Tracy  v.  Cloyd,  10  W.  Va.  19. 

(251) 


§   79  ADMINISTRATIVE    LAW.  [Ch.   9 

If  the  duty  is  ministerial,  all  that  there  is  to  be  done  in 
the  administration  of  the  law  is  to  do  what  the  law 
directs;  but  if  the  power  is  discretionary,  it  is  a  question 
of  the  application  of  a  conditional  law  upon  the  deter- 
mination of  existent  facts.  The  scope  of  the  function  of 
an  officer  in  the  administration  of  the  law,  then,  depends 
upon  the  extent  to  which  discretion  had  been  vested  in 
it.61 

§  79.     Authorization. 

If,  then,  the  case  for  the  application  of  the  law  be 
one  where  the  officer  has  discretion,  he  has  the  power 
to  determine  in  what  condition  of  affairs  the  law  shall 
be  applied.  To  confide  such  a  power  to  a  public  officer 
seems  to  intrust  him  with  an  arbitrary  power.  State  v. 
Yopp,  97  X.  0.  47S  (1887),  is  the  real  answer  to  that. 
In  this  case  every  person  had  been  forbidden  by  a  stat- 
ute to  use  upon  a  certain  highway  any  vehicle  not  drawn 
by  horses  without  the  permission  of  the  Superintendent 
of  the  road.  This  was  a  police  regulation  and  as  such 
not  much  argument  could  be  made  against  it.  The 
chief  contention  against  the  law  was  that  it  left  an 
arbitrary  power  to  the  Superintendent  to  admit  some 
and  exclude  others  at  his  whim. 

6i  The  Officer  as  Agent. — Musgrave  v.  Pulido,  5  App.  Cas.  102; 
Board  of  Liquidation  v.  McComb,  92  U.  S.  531;  Harbin  v.  Stewart,  4 
Port.  370;  Woodward  v.  Campbell,  39  Ark.  580;  Bateman  v.  Colgan, 
111  Cal.  587;  State  v.  Staub,  61  Conn.  553;  United  States  v.  Douglass, 
19  D.  C.  99;  State  v.  Drew,  17  Fla.  67;  State  v.  Thrasher,  77  Ga.  671; 
People  v.  Knickerbocker,  114  111.  539;  Clark  v.  Des  Moines,  19  la. 
199;  Mayo  v.  Commissioners,  141  Mass.  74;  Baltimore  v.  Reynolds.  20 
Md.  1;  People  v.  Auditor  General.  36  Mich.  271;  Swan  v.  Gray.  44 
Miss.  393;  State  v.  Bank,  45  Mo.  528;  State  v.  Scott,  18  Neb.  597; 
Phelps  v.  Hawley,  52  N.  Y.  23;  State  v.  Yopp,  97  N.  C.  478;  Ex 
parte  Black,  1  Oh.  St.  30;  Commonwealth  v.  McLaughlin,  120  Pa. 
St.  518. 

(252) 


Ch.    9]  ITS  AUTHORITY.  §79 

The  court — Mbrriam — answered:  This  is  a  misap- 
prehension of  the  true  import  of  the  provision  cited. 
The  discretion  vested  in  the  Superintendent  is  not  arbi- 
trary. He  is  the  agent  of  the  law,  and  he  is  bound  to 
exercise  discretion  vested  in  him  honestly  and  fairly, 
reasonably  and  without  prejudice,  for  the  just  purpose 
of  effectuating  the  intention  of  the  statute.  It  not  in- 
frequently happens  that  statutes  require  particular 
things  to  be  done  that  must  be  made  to  depend  upon 
the  judgment — discretion — of  a  designated  officer,  and 
the  discretion  in  such  cases  is  not  arbitrary,  it  is  lawful 
and  it  must  be  lawfully  executed.  In  our  case  the  pur- 
pose of  the  statute  is  obviously  a  lawful  one — a  proper 
regulation  of  the  use  of  property — and  the  designation 
of  the  agent  and  the  discretionary  power  conferred  upon 
him  are  for  the  lawful  purpose  of  effectuating  the  just- 
intent  of  the  statute;  and  he  is  amenable  for  any  abuse 
of  that  discretion. 

Fiiited  States  v.  Douglass,  19  D.  C.  99  (1890),  is  to 
this  same  effect.  This  was  a  petition  for  a  writ  of  man- 
damus commanding  the  Commissioners  of  the  District 
of  Columbia  to  approve  and  issue  a  retail  liquor  license 
to  the  relator.  He  states  in  his  petition  his  proceedings 
in  applying  for  the  license  now  in  question,  and  alleges 
that  the  Commissioners  rejected  his  application  in  con- 
sequence of  an  adverse  report  made  to  them  by  an  incom- 
petent officer.  Lieutenant  Amiss,  which  report  lie  further 
declared  to  be  false.  The  issue  thus  became  whether  the 
court  would  go  into  the  matter;  for  if  they  would  a  case 
for  reversal  seemed  to  have  been  made  out. 

As  in  the  case  before  decided,  tliis  power  was  held  dis- 
cretionary. On  thai  pnini  the  courl  by  Mr.  Justice  James 

(253) 


§  79  ADMINISTRATIVE    LAW.  [Ch.   9 

said:  The  meaning  of  the  term  ''discretionary.'*  when 
granted  by  the  law  either  expressly  or  by  implication, 
iii  connection  with  the  exercise  of  official  duty,  is  that 
the  discretionary  decision  shall  be  the  outcome  of  exam- 
ination and  consideration.  In  other  words,  that  it  shall 
constitute  the  discharge  of  official  duty  and  not  be  a 
mere  expression  of  personal  will.  Thus,  where  discre- 
tionary power  is  granted  to  approve  or  disapprove  a  li- 
cense, an  arbitrary  disapproval  without  examination  of 
relative  facts,  and  expressing  nothing  but  the  mood  of 
the  officer,  would  not  lie  in  exercise  of  discretionary 
powers  within  the  legal  meaning  of  that  term.  In  exer- 
cising their  discretionary  power  to  grant  or  refuse  li- 
censes, the  mode  of  inquiry  by  which  the  Commissioners 
may  satisfy  their  judgment  is  not  subject  to  the  rules 
which  apply  to  the  judicial  ascertainment  of  disputed 
private  rights;  no  mode  of  inquiry  is  prescribed  by  the 
statutes,  and  they  are  therefore  by  implication  author- 
ized to  adopt  any  that  may  reasonably  be  used  in  attain- 
ing the  end  in  view.  In  every  system  of  executive  dis- 
cretion, the  executive  head  may  act  upon  mere  informa- 
tion received  from  accountable  superiors. 

All  of  these  cases  are  in  truth  to  the  same  effect.  In 
the  application  of  law  the  requisite  thing  is  judgment. 
The  application  of  a  general  law  to  a  particular  case 
involves  the  determination  in  a  particular  case  whether 
the  general  law  is  applicable.  There  is  a  certain  science 
in  administration,  but  it  all  turns  about  this  one  point, 
the  application  of  a  general  law  to  a  particular  case; 
and  that  all  depends  upon  one  thing,  the  determination 
in  a  particular  case  of  the  application  of  that  general 
law.  In  a  sense  the  first  is  a  question  of  law,  the  second 
(254) 


Ch.    9]  ITS  AUTHORITY.  §   80 

is  a  question  of  fact.  That  is,  all  administration  is  a 
mixed  question  of  law  and  fact.  To  reduce  it  to  two 
phrases,  administration  involves  interpretation  of  law 
and  determination  of  fact;  or,  in  a  word,  the  application 
of  law.62 

§  80.     Interpretation. 

To  continue  along  the  same  line  of  thought  as  in  the 
preceding  section,  what  is  the  extent  of  the  express 
authority  depends  upon  interpretation  in  each  case  for 
itself.  A  case  for  illustration  is  McCormick,  Ct.  of  CI. 
o.  s.  No.  199  (1856).  This  opinion  is  as  follows:  This 
award,  as  has  been  said,  is  the  foundation  of  this  suit, 
and  is  the  only  evidence  offered  to  prove  the  amount 
claimed  against  the  government.  Commodore  Jones, 
it  is  true,  was  acting  as  an  agent  of  the  government 
with  respect  to  this  mill.  Whether  his  authority  was 
limited  to  having  the  mill  built  for  the  use  of  the  gov- 
ernment, or  whether  his  authority  in  regard  to  the  mill 
was  that  of  a  general  agent,  is  not  deemed  material.  We 
consider  the  law  to  be  that  such  an  agent  of  the  govern- 
ment as  the  Commodore  was,  cannot  without  being  espe- 
cially authorized  to  do  so,  bind  the  government  by  sub- 
mission  of  matters   in  dispute  in  arbitration.      It  fol- 

«2  Authobizatiox. — Reg.  v.  Secretary  [1891]  2  Q.  B.  326;  Marbury 
v.  Madison  1  Cranch.  1G9;  Harbin  v.  Stewart,  4  Port.  370;  Wood- 
ward v.  Campbell,  39  Ark.  580;  Freeman  v.  Selectmen,  34  Conn. 
406;  United  States  v.  Chandler,  13  D.  C.  527;  Towle  v.  State,  3  Fla. 
202;  Dart  v.  Hercules.  57  111.  449;  Louisiana  College  v.  State  Treas- 
urer, 2  La.  394;  Weston  v.  Dane,  51  Me.  461;  Waite  v.  Delesdernier, 
1"  Me.  144;  Mayo  v.  Commissioners,  141  Mass.  74;  Stevens  v.  Lake 
George  R.  R..  82  Mich.  126;  Swan  v.  Gray,  11  Miss.  393;  State  v. 
Walbridge,  69  Mo.  App.  057;  Bucher  v.  Thompson,  7  X.  M.  115;  Dan- 
olds  v.  State,  89  N.  Y.  36;  Carr  v.  Northern  Liberties,  :::>  Pa.  Si.  324; 
•Turnpike  Co.  v.  Brown.  8  Baxt    490. 

(255) 


K    80  ADMINISTRATIVE    LAW.  [Ch.    9 

lows  that  the  contract  of  the  7th  of  April,  1849.  with 
Parker,  which  provides  for  a  submission  to  arbitration, 
is  void  for  want  of  authority  in  the  Commodore  to  make 
it;  and  of  course  the  award  must  therefore  be  void. 

This  opinion  may  with  profit  be  compared  with  the 
opinion  of  the  Compromises,  22  Opin.  491  (1899).  The 
drift  of  that  opinion  may  be  seen  from  the  following 
quotation :  Unless  express  provision  of  law  is  in  a 
specific  case  to  the  contrary  the  powers  of  the  Attorney- 
General  are  plenary  upon  these  matters.  The  primary 
broad  and  general  control  of  the  Attorney-General  of 
suits  in  which  the  United  States  is  interested  conferred 
by  statutes,  fully  authorized  such  disposition  of  pending 
litigation  as  seems  to  him  meet  and  proper.  He  exer- 
cises general  supervision  over  proceedings  instituted 
for  the  benefit  of  the  United  States;  and  to  him  is  nec- 
essarily intrusted,  in  the  exercise  of  his  professional  dis- 
cretion and  because  of  the  nature  of  the  subject,  the 
determination  of  many  questions  of  expediency  and  pro- 
priety affecting  the  continuance  or  dismissal  of  legal 
proceedings.  He  may  absolutely  dismiss  suit:  a  fortiori 
he  may  terminate  ai  any  stage  by  way  of  compromise  or 
settlement. 

The  parallel  between  these  last  two  decisions  is  il- 
luminating'. Why  is  the  power  to  leave  to  arbitration 
not  within  the  authority  of  the  Commodore;  and  why  is 
the  power  to  compromise  in  litigation  within  the  author- 
ity of  an  Attorney-*  General?  In  neither  case  is  the  power 
given  explicitly;  why.  then,  is  it  held  to  be  within  the 
scope  of  the  authority  of  the  first,  ami  not  within  the 
scope  of  the  authority  of  the  second?  The  answer  must 
be  that  authority  is  deduced  from  the  nature  of  the 
(  256) 


Ch.    9]  ITS  AUTHORITY.  §   81 

office;  what  is  incident  to  one  office  will  not  be  incident 
to  another  office.  That  is,  a  law  which  grants  the  power 
to  a  public  officer  is  rightly  construed  with  reference  to 
the  object  to  be  attained.  If  the  subject  matter  of  the 
office  is  general,  the  wider  will  be  the  radius  of  the 
authority  of  the  officer;  if  the  object  of  the  office  is  a 
special  one,  the  narrower  will  be  the  scope  of  the  au- 
thority of  the  officer.  Viewed  in  this  light,  the  implica- 
tion of  authority  depends  upon  the  facts  found  in  each 
case.63 

§  81.     Responsibility. 

In  private  agency,  if  there  is  an  unauthorized  con- 
tract made  by  an  agent  with  a  third  person  on  behalf 
of  a  principal,  if  it  prove  that  the  agent  did  not  have 
authority  to  bind  the  principal  as  he  purported  to  do, 
the  agent  is  himself  liable  to  the  third  party.  That  sit- 
uation is  canvassed  in  tin1  case  of  Macbeath  v.  Haldi- 
mand,  1  T.  R.  172  (  1786).  The  Governor  of  the  Prov- 
ince of  Quebec  appointed  one  Sinclair  to  be  Governor  of 
a  post,  directing  him  to  procure  supplies  and  to  draw 
bills  therefor  upon  the  government  as  the  practice  was. 
Later  the  Treasury  disavowed  these  requisitions.  The 
question  was  then  whether  the  Governor  himself  was 
liable. 

Ashhuest  said  :  In  great  questions  of  policy  we  can- 
not argue  from  the  nature  of  private  agreements.  But 
even  in  these  cases  the  question  musi   be,  what  was  the 

63  Intebpretation. — Thompson's  Case,  9  Ct.  of  CI.  187;  Myerle  v.. 
United  States.  33  Ct.  of  CI.  1;  Haynes  v.  Butler,  30  Ark.  69;  Bate- 
man  v.  Colgan,  111  Cal.  587;  Huey  v.  Richardson,  2  Harr.  206; 
State  v.  Haworth.  122  Ind.  462;  Vose  v.  Deane,  7  Mass.  280;  Lynch 
v.  Donnell,  104  Mo.  519;  Armstrong  v.  Ft.  Edward,  159  N.  Y.  315; 
State  v.  Hudson,  44  Oh.  St.   L37. 

(257) 

Adm.  Law — 17. 


§   81  ADMINISTRATIVE    LAW.  [^h.    9 

meaning  of  the  parties  at  the  time  of  entering  into  the 
contract.  In  the  present  case,  the  government  was  made 
the  debtor.  Great  inconvenience  would  result  from  con- 
sidering a  Governor  as  personally  responsible  in  such 
cases  as  the  present.  For  no  person  would  accept  of 
any  office  of  trust  under  a  government  upon  such  con- 
ditions. And,  indeed,  it  lias  been  frequently  determined 
that  no  individual  officer  is  answerable  for  any  engage- 
ment which  lie  enters  into  in  behalf  of  the  government. 

This  law  that  the  public  agent  is  not  to  be  held  to  war- 
rant his  authority  as  the  private  agent  must,  has  been 
worked  out  in  an  exact  manner  of  late  in  the  case  of 
Dunn  v.  MacDonald  [1807]  1  Q.  15.  555  (1897).  The 
plaintiff  alleged  in  his  statement  of  claim  that  the  de- 
fendant, who  was  her  majesty's  Commissioner  for  the 
Nigei-  Protectorate  in  Africa,  had  engaged  him  to  serve 
for  a  term  of  three  years  in  his  own  service;  alternately 
the  plaintiff  alleged  that  the  defendant  warranted  that 
he  was  authorized  to  engage  the  plaintiff  for  three  years 
in  her  majesty's  service. 

The  judgment  of  Lord  Justice  Lopes  was  as  follows: 
The  liabilities  of  public  agents  on  contracts  made  by 
them  in  their  public  capacity  are  on  a  different  footing 
from  the  liabilities  of  ordinary  agents  on  their  contract. 
In  the  former  case,  unless  there  is  something  special 
which  would  evidence  an  intention  to  be  personally  lia- 
ble, an  agent  acting  in  behalf  of  a  government  is  not 
liable  for  the  breach  of  a  contract  made  in  his  public 
capacity,  even  though  he  would  under  the  same  cir- 
cumstances of  contract  be  bound  if  it  were  an  agency 
of  a  private  nature.  That  is  the  short  answer  to  the 
plaintiff's  case.64 

e*  Responsibility. — Macbeath    v.    Haldimand.   1    T.   R.   172:    Dunn 

(258) 


Ch.    9]  ITS  AUTHORITY.  §   82 

§  82.     Subjection. 

The  result  of  all  of  these  cases,  it  would  seem,  is  plain. 
The  public  agent  canuot  act  to  the  prejudice  of  his  prin- 
cipal as  the  private  agent  often  may.  A  test  case  upon 
that  is  United  States  v.  Kirkpatrick,  9  Wheaton,  720 
(1S24).  This  was  a  suit  against  the  sureties  of  a  Col- 
lector of  Taxes.  The  defense  of  the  sureties  was  that 
whereas  the  law  required  periodical  accounts  and  settle- 
ment of  them,  the  Collector  had  been  left  by  his  superiors 
in  default,  and  that  no  summary  measures  had  been 
taken  to  compel  a  settlement.  In  brief  the  defense 
against  the  government  was  based  upon  the  ladies  of 
its  officers. 

Mr.  Justice  Story  delivered  the  opinion  of  the  court: 
The  general  principle  is  that  laches  is  not  imputable  to 
the  government;  and  this  maxim  is  founded  not  upon 
the  notion  of  extraordinary  prerogative  but  upon  a 
great  public  policy.  The  government  can  transact  its 
business  only  through  its  agents ;  and  its  fiscal  operations 
are  so  various  and  its  agencies  so  numerous  and  scat- 
tered that  the  utmost  vigilance  would  not  save  the  public 
from  the  most  serious  losses  if  the  doctrine  of  laches 

v.  Mac-Donald  [1897]  1  Q.  B.  555;  Hodgson  v.  Dexter,  1  Cranch,  345: 
Davis  v.  Garland,  5  Cranch,  C.  C.  570;  Peck  v.  Robinson.  4  New  Br.  687; 
Comer  v.  Bankhead.  70  Ala.  493;  Anderson  v.  Pearce.  36  Ark.  293; 
Dwindle  v.  Henriquez.  1  Cal.  387:  Ogden  v.  Raymond,  22  Conn.  379; 
Samuel's  Ex'r  v.  McDowell,  1  Harr.  108:  Tucker  v.  Shorter,  17  Ga. 
621;  Mann  v.  Richardson,  66  111.  481;  Newman  v.  Sylvester,  42  Ind. 
106;  White  v.  Jones.  67  la.  241;  Murray  v.  Carothers,  1  Mete.  (Ky.) 
71;  Noyes  v.  Loring,  55  Me.  408;  Cutler  v.  Ashland.  121  Mass. 
588;  Sanborn  v.  Neal.  4  Minn.  126;  Copes  v.  Matthews,  10  Sm.  & 
M.  398;  Tutt  v.  Hobbs,  17  Mo.  486;  Delano  v.  Goodwin.  48  N.  H. 
203;  Paulding  v.  Cooper,  74  N.  Y.  619;  Providence  v.  Miller,  11 
R.  I.  272;  Robinson  v.  Howard,  84  N.  C.  151;  Miller  v.  Ford,  4 
Rich.  L.  376;  Syme  v.  Butler,  1  Call,  105. 

(259) 


S    S2  ADMINISTRATIVE    LAW.  [Ch.    9 

were  applied  to  its  transactions.  It  would  in  effect 
work  a  repeal  of  all  securities. 

A  much  more  extreme  case  is  German  Bank  v.  United 
Stales,  26  Ct.  of  CI.  198  (1891).  United  States  bonds 
belonging  to  a  trust  estate  were  in  terms  payable  to 
one  Cockran,  executor.  He  died,  and  an  administrator 
with  the  will  annexed  was  appointed,  who  filed  copies 
of  his  letters  at  the  Treasury  Department.  He  delivered 
the  bonds  to  the  German  Bank  to  sell,  which  forwarded 
them  to  the  Chemical  Bank  for  sale.  The  Register  of 
the  Treasury,  upon  inquiry  by  this  last  bank,  replied: 
There  is  on  file  in  this  office  satisfactory  power  in  favor 
of  your  bank  to  transfer  the  bonds.  The  bonds  were 
sold  and  the  proceeds  paid  over  to  the  administrator, 
who  absconded.  The  cestuis  of  the  original  trust  brought 
suit  against  the  bank  and  recovered.  Has  the  first  bank 
now  any  action  against  the  United  States? 

The  Chief  Justice,  Richardson,  held  not:  The  gov- 
ernment is  not  responsible  for  erroneous  opinions  con- 
cerning the  right  of  an  administrator  to  transfer  United 
States  bonds,  although  au  innocent  party  made  the  trans- 
fer on  the  faith  of  the  opinion.  To  give  advice  and  as- 
sistance in  the  transfer  of  bonds  is  an  excess  of  authority 
by  a  public  officer,  and  to  transfer  them  without  author- 
ity is  a  wrongful  act,  and  for  neither  is  the  government 
responsible.  The  government  is  not  responsible  for  the 
laches  or  wrongful  acts  of  its  officers.  The  scope  of 
authority  of  the  Register  is  to  transfer  only  on  proper 
authority  the  ownership  of  registered  bonds  from  one 
person  to  another.     It  can  go  no  further.65 

'^•Subjection. — Dox  v.  Postmaster-General,  1  Pet.  318:  United 
States  v.  Kirkpatrick,  9  Wheat.  720;  Sharon  v.  Salisbury,  29  Conn. 
113;  German  Bank  v.  United  States,  26  Ct.  of  CI.  198;  State  v.  Has- 

(260) 


Ch.  9]  ITS  AUTHORITY.  §   83 

§  83.     Conclusion. 

In  last  analysis,  then,  this  question  of  the  authority 
of  the  officer  is  reduced  to  the  distinction  between  dis- 
cretionary powers  and  ministerial  duties.  If  an  officer 
has  discretion  lie  may  do  any  act  within  that  discretion; 
and  all  that  he  does  will  be  held  to  have  been  done  by 
express  authorization  of  law.  On  the  other  hand,  if  the 
duty  of  the  officer  is  ministerial  only,  that  very  act  which 
he  had  been  directed  to  do  can  he  held  to  have  been 
done  with  authorization  of  law.  Therefore,  if  he  acts 
beyond  this  express  authorization,  his  acts  w  ill  he  held 
to  be  void.  Every  method  of  administration  of  every 
sort  that  may  he  found  may  ho  reduced  in  the  last  analy- 
sis to  this  distinction  between  discretionary  powers  and 
ministerial  duties.  Whatever  form  these  may  take,  it 
is  all  administration. 

kell,  20  la.  276;  Holten  v.  Lake  Co.  Coin'rs,  55  Ind.  194:  Mitchell  v. 
Rockland,  41  Me.  363;  People  v.  St.  Clair  Co.  Sup'rs,  30  Mich.  388; 
State  v.  Olson,  55  Minn.  118;  State  v.  James,  1  Cush.  (Miss.)  300; 
Blackmore  v.  Boardman,  28  Mo.  420;  McKecknie  v.  Ward,  58  X.  Y. 
541:  Pittsburg  R.  R.  v.  Shaeffer,  59  Pa.  St.  350;  Commissioners  v. 
Rose,  1  Desaus,  461;  Crawn  v.  Commonwealth,  84  Va.  282. 

(261) 


§  84 
85 
86 
87 


CHAPTER  X. 

THE   EXECUTION   OF   THE   ADMINISTRATION. 

Introduction. 

Extraordinary  Process. 

Enforcement. 

Apprehension. 

Command. 

Coercion. 

Ordinary  Process. 

Arrest. 

Seizure. 

Demand. 

Distraint. 

Conclusion. 


§  84.     Introduction. 

In  the  discussion  of  the  methods  of  administration, 
it  will  be  useful  to  make  certain  discriminations.  Upon 
examination  there  appear  to  be  three  processes  of  admin- 
istration :  First,  administration  by  execution;  second, 
administration  by  legislation;  third,  administration  by 
adjudication.  All  of  these  three  are  manifestations  of 
the  process  of  administration.  By  the  first,  the  admin- 
istration enforces  the  law;  by  the  second,  the  adminis- 
tration is  reduced  to  rule ;  by  the  third,  the  controversies 
that  arise  in  administration  are  decided.  In  perfected 
administration  all  of  these  three  processes  will  be  found. 
To  each  of  these  methods  of  administration  a  chapter 
will  now  be  devoted.  These,  after  all,  are  the  chief 
problems  in  administration,  the  invention  of  methods 
whereby  the  laws  may  be  carried  into  effect.  To  a  cer- 
(262) 


Ch.    10]  ITS  EXECUTION.  §   85 

tain  extent  these  are  questions  which  the  administration 
must  decide  for  itself;  to  a  certain  extent  they  are  de- 
cided for  it.  That  is,  a  part  of  the  law  governing  the 
methods  of  administration  is  internal,  a  part  is  externa!. 

§  85.     Extraordinary  process. 

Execution  requires  no  elucidation.  The  need  for  en- 
forcement of  law  arises  when  there  is  opposition;  and 
then,  if  there  is  resistance,  force  must  be  met  with  force. 
There  are  such  and  such  laws  in  the  books.  The  officer 
takes  such  and  such  steps  to  carry  them  into  execution. 
To  a  certain  extent  the  force  employed  is  a  question,  the 
necessity  of  which  the  administration  must  determine 
for  itself.  A  government  which  does  not  succeed  in  the 
maintenance  of  its  laws  against  opposition  stands  a 
confessed  failure  before  the  world. 

This  enforcement  of  the  law  often  approaches  to  an  ex- 
terior limit.  That  is  the  same  limitation  which  is  present 
in  all  governmental  action — due  process  of  law.  That  a 
man  shall  not  be  seized  nor  his  goods  taken  except  by 
due  process  of  law  has  been  the  law  of  the  land  from 
the  earliest  day;  therefore,  as  to  what  is  due  process  in 
government  there  is  some  agreement.  It  is  plain  that 
much  action  by  an  administration  that  is  summary  may 
yet  be  due  process  of  law;  on  the  other  hand,  it  is  plain 
that  some  action  by  the  administration  in  the  execution 
of  the  law  is  too  arbitrary  to  he  due  process.  The  at- 
tempt in  this  chapter  will  be  to  draw  that  line'"1 

co  Extuaokiii  \.\i;v  Process. — Sullivan  v.  Earl  Spencer,  Ir.  R.  6 
C.  L.  173;  In  re  Neagle,  135  U.  S.  1;  In  re  Debs,  158  U.  S.  579; 
Johnson  v.  Jones,  44  111.  157;  Langenberg  v.  Decker,  131  Ind.  482; 
Mitchell  v.  Rocklanrl,  41  Me.  363;  Nichols  v.  Boston,  98  Mass.  39; 
Burroughs  v.  Eastman,  101  Mich.  426;   Cochran  v.  Toher,  14  Minn. 

(  263) 


§    86  ADMINISTRATIVE    LAW.  [Ch.  10 

§  86.     Enforcement. 

That  nation  which  does  not  make  its  coercive  force 
fell  throughout  the  length  and  breadth  of  the  land  is  in 
a  state  of  disintegration.  The  example  of  this  that  will 
never  he  forgotten  in  the  United  States  was  the  fatal 
failure  to  attempt  to  maintain  the  federal  law  through- 
out the  United  States  in  the  winter  of  1800  and  1861. 
Late  in  18(10  the  secession  began.  The  President  did 
nothing.  The  valuable  property  of  the  United  States 
was  seized  by  disorganized  forces.  The  President  still 
did  nothing.  The  customs  houses  fell  into  the  hands 
of  the  state  governments.  At  last  the  President  did 
something;  he  asked  the  advice  of  the  Attorney-General. 
He  received  in  reply  such  an  opinion  as  he  wished — 
The  Power  of  the  President,  0  Opin.  516  (1860). 

This  was  the  advice  of  Attorney-General  Black:  To 
the  Chief  Executive  Magistrate  of  the  Union  is  confided 
the  solemn  duty  of  seeing  the  laws  faithfully  executed. 
That  he  may  be  able  to  moot  this  duty  the  forces  of  the 
United  States  arc  under  his  orders  as  their  Commander- 
in-(  Jhief.  But  his  power  is  to  be  used  only  in  the  manner 
prescribed  by  the  legislative  department.  He  cannot 
accomplish  a  legal  purpose  by  illegal  means.  I  now 
come  to  the  point  in  your  letter  which  is  probably  of 
the  greatest  practical  importance.  By  various  acts  the 
land  and  naval  forces  of  the  United  States  and  the  mili- 
tia of  the  several  states  may  be  called  forth  by  you  when- 
ever the  laws  of  the  XTnited  States  shall  be  opposed  or 
the  execution  thereof  obstructed   in  any  state.     These 

385;  McLaughlin  v.  Green.  50  Miss.  466;  Taylor  v.  Place,  4  R.  I. 
338;  State  v.  McMillan,  52  S.  C.  69;  Martin  v.  Snowden,  18  Grat. 
142. 

(264) 


Ch.    10J  ITS  EXECUTION.  <    S(, 

existing  laws  put  and  keep  the  Federal  Government  on 
the  defensive  strictly.  You  can  use  force  only  to  repel 
an  assault  on  a  public  property  and  to  aid  the  courts  in 
the  performance  of  their  duty.  If  the  means  given  you 
to  collect  the  revenue  and  enforce  the  other  laws  l»r 
insufficient  for  that  purpose,  Congress  may  extend  and 
make  them  more  effectual  to  those  ends. 

Within  a  few  months  a  new  President  came  into  office 
and  began  war.  He  had  no  hesitation  as  to  the  power 
of  the  President  in  executing  the  laws.  He  found  the 
laws  of  the  United  States  opposed  in  the  Southern 
States;  he  called  out  the  militia  of  the  Northern  States. 
He  found  the  forces  of  the  Union  confronted  with  the 
forces  of  the  Confederacy;  he  declared  a  blockade  of  all 
the  states  in  secession,  and  iliis.  with  or  without  action 
of  Congress, — it  did  not  seem  to  matter  to  him  much.  All 
this  he  did  upon  the  basis  that  the  President  had  the 
coercive  forces  of  the  nation  at  his  disposal  to  enforce 
the  laws  whenever  those  laws  were  opposed.  And  in  the 
end  Congress  ratified  what  he  did  as  proper  at  the  time; 
the  Supreme  Court  of  the  United  States  declared  what 
he  did  was  within  his  power;  and  history  has  set  its 
high  approval  upon  this  administration  of  Lincoln. 

One  of  these  opinions  of  the  Supreme  Court  just  re- 
ferred to  is  the  Prize  Cases,  2  Black,  634  i  L862).  A  part 
of  the  opinion  of  Mr.  Justice  GRIER  follows:  Had  the 
President  ;i  righl  to  institute  a  blockade  of  ports  in  the 
possession  of  persons  in  armed  rebellion  against  the 
government?  By  the  Constitution  Congress  alone  has 
the  power  to  declare  ;i  national  or  foreign  war.  It  can- 
not declare  a  war  againsl  the  state  or  any  number  of 
the  states  by   virtue  of  any  clause  of  the  Constitution. 

i  265  I 


§   87  ADMINISTRATIVE    LAW.  [Ch.    10 

The  Constitution  confers  on  the  President  the  whole 
executive  power.  He  is  bound  to  take  care  that  the 
laws  be  faithfully  executed.  He  is  Commander-in-Chief 
of  the  Army  and  Navy  of  the  United  States.  He  is  not 
authorized,  but  bound  to  resist  force  with  force.  He 
does  not  initiate  war,  but  is  bound  to  accept  the  chal- 
lenge without  waiting  for  special  legislative  authority.67 

§  87.     Apprehension. 

In  many  ways  the  civil  war  enlarged  the  conception 
of  the  functions  of  government  but  in  no  particular  more 
than  in  the  appreciation  of  the  extent  of  the  powers  of 
the  executive.  Indeed  the  test  of  this  principle  that 
the  executive  is  subject  to  distinct  limitations  in  tin  en- 
forcement of  the  law  will  come  in  rime  of  war.  For  a 
most  important  part  of  any  state  or  martial  law  is  the 
making  of  arrests  of  civilians  charged  with  various  of- 
fenses. Sit.  to  arrest  and  hold  is  in  effect  to  suspend 
the  writ  of  habeas  corpus;  for.  indeed,  no  military  gov- 
ernment can  be  practical  if  the  writ  of  habeas  corpus  is 
enforced.  This  is  recognized  in  one  provision  of  the 
Constitution  which  contemplates  the  suspension  of  the 
writ  of  habeas  corpus  in  time  of  military  necessity,  with- 
out, however,  designating  in  whom  the  power  to  suspend 
tlie  writ  shall  be  vested. 

This  was  the  situation  at  the  outbreak  of  the  War  of 
the  Rebellion  when  a   case  came  before   the  Chief  Jus- 

07  Enforcement. — Whiteside  v.  United  States.  93  U.  S.  247;  In  re 
Snow.  120  U.  S.  286;  Tennessee  &  C.  R.  Co.  v.  Moore,  36  Ala.  371;  Haw- 
kins v.  Governor.  1  Ark.  570;  Ex  parte  Shrader,  33  Cal.  279;  McWhor- 
ter  v.  Pensacola  R.  R..  24  Fla.  417;  Johnson  v.  Jones,  44  111.  K>7; 
Langenberg  v.  Decker,  131  Ind.  482;  Mitchell  v.  Rockland,  41  Me. 
363;  Nichols  v.  Boston.  98  Mass.  39;  McLaughlin  v.  Green,  50  Miss. 
466;   Sooy  v.  State,  39  N.  J.  L.  135:   Mauran  v.  Smith,  8  R.  I.  192. 

(266) 


Ch.    10]  ITS  EXECUTION.  <    87 

tice  of  the  United  States  which  raised  this  very  questioD 
— Ex  parte  Merryinan,  Taney,  216  (1861).  The  petition 
for  the  habeas  corpus  recited  that  on  the  25th  of  May, 
1861,  the  petitioner,  a  citizen  of  Baltimore,  was  arrested 
by  order  of  a  Major-General  of  the  United  Stares,  and 
committed  to  Fort  McHenry,  within  the  District  of 
Maryland.  A  writ  of  habeas  corpus  was  issued  by  the 
Chief  Justice,  then  sitting  in  chambers,  to  the  Command- 
ant of  the  fort,  directing  him  to  bring  the  prisoner  to 
the  court.  The  Commandant  refused  to  produce  the 
prisoner  upon  the  ground  that  the  arrest  was  made  by 
the  military  arm,  while  the  prisoner  was  in  an  overt 
act  of  treason,  and  upon  the  further  ground  that  the 
Commandant  was  duly  authorized  by  the  President  of 
the  United  States  in  such  cases  to  refuse  the  writ  of 
habeas  corpus.  Chief  Justice  Taney,  in  high  indigna- 
tion, ordered  attachment  to  issue.  The  officer  proceeded 
to  Fort  McHenry  for  the  purpose  of  serving  the  writ. 
Stopped  at  the  outer  gate,  he  sent  in  his  name;  after 
a  time  the  messenger  returned  with  the  reply  that  there 
was  no  answer  to  his  card.  In  view  of  the  superior  force 
at  the  disposal  of  the  Commandant,  the  Chief  Justice 
excused  the  marshal  from  taking  any  further  proceed- 
ings. 

On  the  next  .day  this  memorandum  was  placed  on  file 
for  an  opinion:  I  ordered  the  attachment  yesterday  lie- 
cause  upon  the  face  of  the  return  the  detention  of  the 
prisoner  was  unlawful  upon  the  grounds:  1.  Thai  the 
President  under  the  Constitution  of  the  United  States 
cannot  suspend  the  privilege  of  the  writ  of  habeas  cor- 
pus nor  authorize  a  military  officer  to  do  it.  2.  A  mili- 
tary officer  has  no  right  to  arrest  and  detain  a  person 

(267) 


§   87  ADMINISTRATIVE    LAW.  [Ch.  10 

not  subject  to  the  rules  and  articles  of  war,  for  an  offense 
againsl  the  laws  of  the  United  States;  and  if  a  party 
be  arrested  by  the  military  it  is  the  duty  of  the  officer 
to  deliver  him  over  immediately  to  the  civil  authority 
to  be  dealt  with  according  to  law. 

The  result  of  this  collision  was  that  the  executive 
held  its  man.  That  must  always  be  the  result;  and.  in- 
deed, the  humiliation  of  the  Chief  Justice  was  merited. 
The  truth  of  the  matter  is  that  effective  execution  in  time 
of  war  requires  that,  when  necessity  arises,  the  writ  of 
habeas  corpus  shall  be  suspended  at  once.  The  Presi- 
dent is  charged  with  the  faithful  execution  of  the  laws, 
and  by  consequence  empowered  to  use  every  possible 
means  that  may  be  given  him  by  implication.  The  ex- 
ecutive power  of  the  government  must  suppress  rebel- 
lion and  repel  invasion.  It  is  first  in  the  field,  best 
acquainted  with  the  extent  of  the  danger,  and  well 
qualified  to  judge  of  the  circumstances.  As  a  present 
question  in  constitutional  law.  it  is  hardly  too  much  to 
claim  that  the  executive  might  today  suspend  the  writ. 

But  to  allow  the  suspension  of  the  writ  is  one  thing. 
and  to  allow  conviction  by  a  court  martial  is  quite  anoth- 
er thing;  one  cannot  be  founded  upon  the  other.  The 
leading  case  in  this  whole  subject  is  Ex  parte  Milligan, 
4  Wall.  2  (18G6).  The  case  made  for  the  petitioner 
was  this:  He  was  a  civilian,  he  had  been  arrested  by 
the  military,  he  had  been  tried  before  a  military  commis- 
sion, he  had  been  sentenced  to  be  hanged  ;  and  the  ques- 
tion certified  to  the  Supreme  Court  of  the  United  States 
was:  Whether  such  a  military  commission  had  power 
to  try  a  civilian  in  the  state  of  Indiana  in  1864. 

Mr.  Justice  Davis  delivered  an  impressive  opinion: 
(268) 


Ch.  10]  ITS  EXECUTION.  §   88 

The  importance  of  the  main  question  presented  by  (his 
record  cannot  be  overstated;  for  it  involves  the  very 
framework  of  the  government  and  the  fundamental 
principles  of  American  liberty.  No  graver  question  was 
ever  considered  by  the  court,  nor  one  which  more  nearly 
concerns  the  rights  of  the  whole  people;  for  it  is  the 
birthright  of  every  American  citizen  when  charged  with 
crime  to  he  tried  and  punished  according  to  law.  No 
doctrine  involving  more  pernicious  consequences  was 
ever  invented  by  the  wit  of  man  than  that  any  provisions 
of  the  Constitution  can  he  suspended  during  the  exigen- 
cies of  government.  It  is  difficult  to  see  how  the  safety 
of  the  country  required  any  such  martial  law  in  Indiana 
in  1864.  If  any  of  her  citizens  were  -plotting  treason 
the  military  had  the  power  of  arrest  until  the  govern- 
ment was  prepared  for  their  trial.  The  courts  were 
ready  and  open  to  try  them.  Milligan  will  therefore  he 
discharged.    Martial  law  is  created  only  by  a  necessity.68 

§  88.     Command. 

These  coercive  forces  in  government  in  time  of  need 
are  well  set  forth  in  Durand  v.  Ilollins,  4  Blatch.  451 
(1860).  This  was  an  action  of  trespass  for  the  destruc- 
tion of  property  of  the  plaintiff  at  Greytown,  Nicaragua, 
by  order  of  the  defendant.  The  defendant  pleaded  that 
he  was  a  commander  in  the  navy  of  the  United  St;itos; 
that  by  virtue  of  order  of  the  President,  he  directed  the 

08  Apprehension. — Hardy  v.  Murphy,  1  Esp.  294;  Booth  v.  Han- 
ley,  2  C.  &  P.  288;  Martin  v.  State,  89  Ala.  115;  State  v.  Brown,  r, 
Harr.  505;  Vandeveer  v.  Mattocks.  :;  hid.  179;  Bontte  v.  Emmer, 
43  La.  Ann.  980;  Commonwealth  v.  Wright,  158  Mass.  149;  Quinn 
v.  Heisel,  40  Mich.  576;  State  v.  Dierberger.  96  Mo.  666;  Burns  v. 
Erben,  40  N.  Y.  463;  Neal  v.  Joyner,  89  N.  C.  287;  Douglass  v. 
Barber,  18  R.  I.  459. 

(200) 


e  88  ADMINISTRATIVE    LAW.  [Oh.    10 

bombardment  of  Greytown,  which  resulted  in  the  de- 
si ruction  complained  of;  and  that  the  bombardment 
was  justified  by  the  failure  of  the  authorities  of  Grey- 
town  to  give  redress  for  acts  of  violence  perpetrated 
upon  inhabitants  of  the  United  States. 

Mr.  Justice  Nelson  upon  circuit  held :  The  executive 
power  under  the  constitution  is  vested  in  the  President 
of  the  United  States.  He  is  Commander-in-Chief  of  the 
Army  and  Navy,  and  has  imposed  upon  him  the  duty  to 
take  care  that  the  laws  be  faithfully  executed.  As  the 
executive  head  of  the  nation  the  President  is  made  the 
only  legitimate  organ  of  the  general  government  to  open 
and  carry  on  negotiations  with  foreign  nations.  Now. 
as  it  respects  the  interposition  of  the  executive  abroad 
for  the  protection  of  the  lives  and  property  of  the  citizen 
the  duty  must  of  necessity  rest  in  the  discretion  of  the 
President.  The  great  object  and  duty  of  government  is 
the  protection  of  the  lives.  Liberty,  and  property  of  the 
persons  composing  it,  whether  at  home  or  abroad,  and 
any  government  failing  in  the  accomplishment  of  that 
duty  is  not  worth  preserving.  It  is  quite  clear  that  in 
all  cases  where  a  public  act  or  order  rests  in  executive 
discretion  neither  he  nor  his  authorized  agent  is  civilly 
responsible  for  the  consequences. 

This  conception  is  seen  in  a  late  assertion  of  the  ple- 
nary papers  of  the  executive  in  the  opinion  on  the  For- 
eign Cables,  22  Opin.  13  (1898).  On  May  4,  1S97,  the 
French  ambassador  submitted  to  the  Secretary  of  State 
the  application  of  the  French  Company  Telegraphic  Ca-' 
bles  for  permission  to  land  a  cable  supplementary  to  that 
which  it  had  between  Brest  and  Cape  Cod.  upon  the 
f?ame  terms  and  conditions  as  the  main  cable.  The  State 
(270) 


Ch.    10]  ITS  EXECUTION.  §   88 

Department  answered  that  the  present  executive  did  not 
regard  himself  as  clothed  with  authority  to  authorize 
the  landing  of  submarine  cables  without  legislation  of 
Congress.  This  note  was  forwarded  to  the  company 
through  the  ambassador;  but  the  work  of  landing  the 
cable  had  been  completed  by  the  company  in  the  mean- 
time. The  opinion  of  the  Attorney-General  was  asked 
as  to  what  could  be  done  under  those  circumstances. 

Richards,,  the  acting  Attorney-General,  returned  a 
vigorous  opinion:  The  preservation  of  our  territorial 
integrity  and  the  protection  of  our  foreign  interest  are 
intrusted  in  the  first  instance  to  the  President.  In  the 
protection  of  these  fundamental  rights,  which  are  based 
upon  the  Constitution  and  grow  out  of  the  jurisdiction 
of  this  nation  over  its  own  territory  as  a  distinct  sover- 
eignty, the  President  is  not  limited  to  the  enforcement 
of  specific  acts  of  Congress.  I  am  of  opinion,  there- 
fore, that  the  President  has  the  power  in  the  absence  of 
legislative  enactment  to  control  the  landing  of  foreign 
submarine  cables.  He  may  either  prevent  the  landing 
if  the  rights  intrusted  to  his  care  so  demand,  or  permit 
it  on  conditions  which  will  protect  the  interests  of  the 
government  and  its  citizens.  And  if  a  landing  has  been 
effected  without  the  consent  or  against  the  protests  of 
ibis  government,  respect  for  its  rights  and  compliance 
with  its  terms  may  be  enforced  by  applying  the  prohibi- 
tion to  the  oper; n  ion  of  the  line  unless  the  necessary  con- 
ditions are  observed,  and  this  may  be  done  by  force. 

This  certainly  is  an  elementary  power  of  the  adminis- 
tration— the  power  to  command.  The  righl  to  direct 
what  shall  be  done  is  the  righl  of  the  chief  executive  in 
all   governments,      in   this  aspect    the  administration   is 

(271  ) 


2    89  ADMINISTRATIVE    LAW.  [Ch.   10 

the  government  in  action.  Instant"  obedience  must  be 
the  requirement  in  certain  contingencies.  The  power  to 
give  orders  and  the  duty  to  obey  such  orders  is  the  char- 
acteristic situation   in  administration. ''■' 

§  89.     Coercion. 

This  power  in  the  administration  may  go  to  any  extent 
that  is  necessary — even  to  killing.  The  leading  case  for 
that  is  In  re  Neagle,  135  U.  S.  1  1 1890).  David  Neagle, 
a  deputy  marshal  of  the  United  States,  was  brought 
into  the  United  States  court  from  the  custody  of  a 
California  court  upon  his  averment  that  he  was  held 
in  imprisonment  for  an  act  done  in  execution  of  the 
laws  of  the  United  States.  Neagle  had  hilled  a  former 
judge,  Terry,  who  had  made  an  attack  upon  Mr.  Justice 
Field  of  the  Supreme  Court  of  the  United  States.  An 
order  was  entered  discharging  Neagle  from  custody 
upon  a  finding  that  he  was  held  in  custody  for  an  act 
done  in  pursuance  of  a  law  of  the  United  States. 

Mr.  Justice  Miller,  after  stating  the  case  as  above, 
said:  In  the  view  we  take  of  the  Constitution  of  the 
United  States,  any  obligation  fairly  and  properly  in- 
ferable from  that  instrument,  or  any  duty  of  the  Mar- 
shal to  he  derived  from  the  general  scope  of  his  duties, 
is  law.  It  would  seem  that  the  argument  might  close 
here.  If  the  duty  of  the  United  States  to  protect  its 
officers  from  violence  even  to  death  in  discharge  of  duties 

■-iMMAxi).— United  States  v.  Klein.  13  Wall.  137;  Mitchell  v. 
Harmony,  13  How.  115;  Hawkins  v.  Nelson,  40  Ala.  553;  Worthy  v. 
Kinamon,  44  Ga.  297:  La  Salle  County  v.  Simmons,  10  111.  513; 
Logansport  v.  Justice,  74  Ind.  378;  Terrill  v.  Rankin.  2  Bush,  453; 
Ford  v.  Surget,  46  Miss.  130;  Drehman  v.  Stifel,  41  Mo.  184;  Bran- 
ner  v.  Felkner,  1  Heisk.  228;  Koonce  v.  Davis,  72  N.  C.  218. 

(2?2) 


Ch.    10]  ITS  EXECUTIOX.  <    89 

which  the  law  has  laid  upon  them  be  established,  and 
Congress  has  made  the  writ  of  habeas  corpus  one  of  the 
means  by  which  this  protection  is  efficient,  and  if  the 
facts  show  that  the  prisoner  in  this  case  was  thus  acting 
in  accordance  with  his  duty — no  murder  can  be  con- 
ceived of  as  committed.  The  prisoner  should  be  dis- 
charged by  this  writ  of  habeas  corpus,  because  lie  was  not 
liable  to  answer  in  the  courts  of  California  for  the  parr 
he  had  in  that  transaction. 

The  present  principle  may  then  be  stated  in  as  extreme 
a  form  as  this :  Whenever  it  is  necessary  for  the  en- 
forcement of  a  law  that  a  certain  thing  should  be  done 
by  an  officer  in  order  to  carry  it  into  execution,  that 
thing  may  be  done.  This  is  found  laid  down  at  the  time 
of  the  fugitive  slave  law  in  an  opinion  on  the  Extradi- 
tion of  Fugitives,  6  Opin.  466  (1854).  It  appeared  that 
on  the  2nd  of  June,  1851,  a  warrant  was  issued  from 
the  Commissioner  of  the  United  States  in  the  city  of 
Chicago  for  the  apprehension  of  a  fugitive  slave  under 
which  the  Marshal  had  arrested  the  negro.  Thereupon, 
a  rescue  being  threatened,  the  Commissioner  and  the 
Marshal  deemed  it  necessary  and  proper  to  call  to  their 
assistance  a  party  of  men,  police  and  militia,  as  a  guard. 
For  the  subsistence  of  this  guard  the  Marshal  provided. 
He  now  claims  allowance  for  their  compensation. 

In  a  learned  opinion  Cushing,  then  Attorney-General, 
upheld  the  legality  of  this  method  of  executing  the  law  ; 
in  substance,  he  said:  A  Marshal  of  the  United  States, 
when  opposed  in  the  execution  of  his  duties  by  unlawful 
combinations,  has  authority  to  summon  the  entire  force 
of  his  precinct  as  a  posse  comitatus.  This  ancient  power 
exists  today.     This  authority  comprehends  not  only  bv- 

(273) 

Adm.  Law — 18. 


jj   90  ADMINISTRATIVE    LAW.  [Ch.    10 

gtanders  and  citizens  generally,  but  any  and  all  organ- 
ized armed  forces,  whether  militia  of  the  state  or  forces 
of  the  United  States.  If  the  object  of  resistance  to  the 
Marshal  be  to  obstruct  and  to  defeat  the  execution  of 
the  provision  of  an  act  of  Congress,  the  expenses  of  such 
posse  comitatus  are  properly  chargeable  to  the  United 
States.70 

§  90.     Ordinary  process. 

The  basis  of  all  administration  is  found  in  the  law 
itself.  If  the  law  is  absolute,  what  is  commanded  must 
be  done;  if  the  law  is  specific,  that  must  be  performed 
that  is  directed — to  the  extent  that  a  duty  is  ministerial, 
mechanical  execution  is  required.  This  is  not  a  ques- 
tion in  such  a  case  of  the  better  method;  thai  method 
which  is  indicated  must  be  followed.  This  is  by  means 
uncommon  that  the  law  should  be  explicit  even  to  the 
extent  of  prescribing  methods  of  administration.  Even 
administrative  statutes  arranging  a  whole  course  of 
administration  are  sometimes  enacted.  An  example  of 
this  is  the  United  States  Customs  Administrative  Acl 
of  1890. 

On  the  other  hand,  the  law  may  not  be  absolute,  but 
conditional:  in  which  case  the  officer  must  decide  in 
what  way  the  law  is  to  be  enforced.  That  is.  to  the  ex- 
tent to  which  a  duty  is  discretionary,  the  officer  has  the 

""Coercion. — Rex  v.  Pinney,  5  C.  &  P.  254;  Lamar  v.  Browne,  92 
U.  S.  194;  In  re  Neagle,  135  U.  S.  1;  Logan  v.  United  States,  144  U. 
S.  295;  In  re  Debs,  158  U.  S.  579;  Holmes  v.  Sheridan,  1  Dillon. 
351;  United  States  v.  Mullin,  71  Fed.  686:  Parham  v.  Justices.  9 
Ga.  341;  Highway  Com'rs  v.  Ely,  54  Mich.  175;  Hogue  v.  Penn,  3 
Bush,  663;  McLaughlin  v.  Green.  50  Miss.  453;  Bryan  v.  Walker. 
64  N.  C.  141. 

(274) 


Ch.    10]  ITS  EXECUTION.  | 

power  to  decide  upon  the  method  to  he  used  in  adminis- 
tration. Upon  the  whole,  this  is  the  more  usual.  The 
law  usually  leaves  the  method  of  execution  to  the  admin- 
istration. This  is  the  right  of  the  matter  in  theory, 
since  it  observes  the  separation  of  powers  in  leaving  to 
the  administration  its  proper  function.  It  is  expedient 
also,  since  it  gives  over  the  methods  of  administration 
to  those  that  understand  it.71 

§  91.     Arrest. 

These  cases  where  force  must  be  met  with  force  involve 
the  authority  of  peace  officers  more  often  than  the  power 
of  higher  officers  of  the  administration.  These  public 
officers  are  at  all  times  confronted  with  the  necessity  to 
determine  on  the  instant  whether  they  will  use  force  or 
not  and  how  much  force  they  must  use.  Upon  these 
questions  of  the  law  governing  execution  there  is  much 
law;  and  upon  all  these  points  the  law  is  very  exacting 
of  the  officer.  He  must  not  use  force  at  all  unless  there 
is  breach  of  the  peace;  more  than  that,  if  he  must  use 
force  he  may  not  use  more  force  than  is  absolutely  neces- 
sary. 

For  example,  upon  the  question  of  the  authority  of  an 
officer  to  arrest  without  warrant  there  is  much  special 

"i  Ordinary  Process. — Beckwith  v.  Philby,  6  B.  &  C.  635;  Murray's 
Lessee  v.  Hoboken  L.  &  I.  Co.,  18  How.  272;  Lawton  v.  Steele,  152 
U.  S.  133;  The  Bolina,  1  Gall.  75;  Knot  v.  Gay,  1  Root  66;  Long  v. 
State,  12  Ga.  293;  Commissioners  v.  Reeves,  148  Ind.  17^:  McMillen  v. 
Anderson,  27  La.  Ann.  19;  Kellar  v.  Savage,  20  Me.  199;  Tellefsen  v. 
Fee,  168  Mass.  188;  Burroughs  v.  Eastman,  101  Mich.  426;  Nelson 
Lumber  Co.  v.  McKinnon,  61  Minn.  222;  Ela  v.  Shepard,  32  N.  H. 
277;  McMahon  v.  Palmer,  102  N.  Y.  176;  State  v.  Wilson,  121  N.  C. 
454;  Cleveland  v.  Tripp,  13  R.  I.  64:  Musser  v.  Adair,  55  Oh.  St.  472; 
State  v.  Sponaugle.  45  W.  Va.  430. 

(275) 


g   9]  ADMINISTRATIVE    LAW.  [Ch.    10 

law.  A  simple  case  in  point  is  Boyleston  v.  Kerr,  2  Daly, 
220  (1867) — an  action  for  false  imprisonment  against  a 
policeman.  The  testimony  was  to  the  effect  that  Boyl- 
ston  had  gone  into  the  cafe  of  Kerr  and  had  ordered  a 
luncheon.  Boylston  was  given  a  check  for  forty  cents, 
the  amount  to  which  he  had  eaten ;  but  at  the  counter 
he  substituted  a  check  for  fifteen  cents,  which  he  had 
obtained.  After  he  had  reached  the  street  Kerr  called 
out  for  a  policeman.  The  policeman  arrested  Boylston, 
which  is  the  imprisonment  complained  of. 

Daly,  the  presiding  Justice,  disposed  of  the  case  brief- 
ly :  As  the  arrest  was  made  without  a  warrant,  the  de- 
fendant, as  a  party  assisting  in  making  an  unlawful 
arrest,  was  liable  to  an  action  by  the  person  arrested. 
There  was  no  breach  of  the  peace  to  authorize  an  arrest 
without  a  warrant.  The  only  rule  in  the  matter  is  that 
the  police  officer  virtute  officii  may  arrest  a  person  for 
a  breach  of  the  peace  committed  in  his  presence.  The 
arrest  of  the  plaintiff  was  therefore  unlawful.  This  is 
a  strict,  but  a  necessary  rule  for  the  protection  of  the 
citizen. 

There  is  a  mitigation  of  this  strict  rule  in  favor  of 
the  public  officer — a  rule  of  administrative  law,  there- 
fore, in  the  strictest  sense  of  that  term.  That  is  well 
stated  in  Beckwith  v.  Philby,  6  B.  &  C.  635  ( 1827) .  This 
was  an  action  for  assaulting,  beating,  handcuffing  and 
imprisoning  the  plaintiff;  and  keeping  and  detaining 
him,  handcuffed  and  imprisoned,  for  forty-eight  hours 
upon  a  false  charge  that  he  had  been  appreEended  in 
the  course  of  a  felony.  The  officer  pleaded  that  he  had 
reasonable  and  probable  cause  in  making  the  arrest. 

Lord  Tenterden  said:  The  only  question  of  law  in 
(276) 


Ch.  10]  ITS  EXECUTION.  §   91 

the  case  is  whether  a  constable  having  reasonable  cause 
to  suspect  that  a  person  has  committed  a  felony  may 
detain  such  a  person  until  he  can  be  brought  before  a 
justice  of  the  peace  to  have  his  conduct  investigated. 
There  is  this  distinction  between  a  private  individual 
and  a  constable:  In  order  to  justify  the  former  in  caus- 
ing the  imprisonment  of  a  person,  he  must  not  only 
make  out  a  reasonable  ground  of  suspicion,  but  he  must 
prove  that  a  felony  has  actually  been  committed :  where- 
as a  constable  having  reasonable  ground  to  suspect  that 
a  felony  has  been  committed  is  authorized  to  detain 
the  party  suspected  until  inquiry  can- be  made  by  the 
proper  authorities. 

The  cases  are  all  in  accord  with  these  general  doc- 
trines. It  will  be  too  hard  for  the  officer  if  there  be  not 
some  mitigation  in  his  position.  So  harsh  a  rule  of  law 
had  to  give  way  somewhat  to  an  administrative  rule 
for  his  protection  based  upon  that  policy.  The  law  of 
the  land  which  protects  the  individual  is  in  logic  as 
much  violated  in  one  case  as  in  the  other.  In  a  similar- 
way  from  a  similar  policy  officers  who  institute  prosecu- 
tion are  protected  even  if  it  prove  in  the  outcome  that 
the  party  prosecuted  was  innocent,  if  at  the  time  the 
officer  acted  upon  probable  cause.  And  upon  the  same 
basis,  whatever  acts  an  officer  does  in  reasonable  com- 
pliance with  process  fair  upon  its  face  may  be  justified 
by  him.  All  these  are  true  rules  of  administrative  law 
of  the  foreign  sort.  In  our  domestic  law  these  are  ex- 
ceptions.72 

72  Arrest. — Beckwith  v.  Philby,  6  B.  &  C.  635;  Howard  v.  Clarke 
20  Q.  B.  D.  558;  Kurtz  v.  Moffitt,  115  U.  S.  487;  Knot  v.  Gay,  1  Root, 
66;  Long  v.  State,  12  Ga.  293;  Kindred  v.  Stitt,  51  111.  401;  Srirelf 
v.  Neeves,   47    Ind.   289;    Leddy    v.   Crossman,    108   Mass.   237;    Bur- 

(277) 


£    <)2  ADMINISTRATIVE    LAW.  [£h.    10 

§  92.     Seizure. 

The  summary  power  of  the  administration  is  seen  in 
the  Bolina,  1  Gall.  75  (1812).  An  information  of  seizure 
was  filed  against  the  Bolina  and  her  cargo  for  not  un- 
lading her  cargo.  The  Collector  of  Customs  upon  her 
refusal  had  directed  the  Surveyor  to  take  possession  of 
the  schooner  as  forfeited ;  which  he  accordingly  did,  and 
gave  information  of  the  seizure  on  the  evening  of  the 
same  day  to  the  claimant,  the  owner.  A  variety  of 
grounds  of  defense  was  presented.  Most  of  these  ex- 
ceptions related  to  the  course  of  proceedings  followed 
by  the  Collector;  indeed,  the  validity  of  the  principal 
statute  was  admitted. 

The  opinion  was  by  Mr.  Justice  Story:  It  is  further 
contended  that  the  Collector  had  no  authority  to  make 
a  seizure  in  this  case,  it  not  being  within  the  express 
purview  of  any  statute  giving  him  authority  that  he  shall 
have  power  to  seize.  At  common  law  any  officer  might 
seize  uncustomed  goods  to  the  use  of  the  King.  This 
doctrine  is  supported  by  Lord  Hale  and  better  authority 
could  not  be.  On  general  principles,  therefore,  the  ob- 
jection would  be  without  foundation.  The  conclusion  is 
that  the  seizure  was  lawfully  made.  Since  there  is  im- 
plied authority  in  officers  of  the  customs  to  pursue  by 
seizure  the  powers  which  the  law  intrusts  to  them,  it  is 
of  importance  that  the  Executive  should  have  this  power 
in  the  enforcement  of  the  law. 

One  noteworthy  case  along  this  line  of  discussion  is 

roughs  v.  Eastman,  101  Mich.  426;  Wahl  v.  Walton,  30  Minn.  506; 
Angle  v.  Runyon,  9  Vroom.  403;  Boyleston  v.  Kerr,  2  Daly,  220; 
Yount  v.  Carney,  91  la.  559;  McCarthy  v.  De  Armit,  99  Pa.  63;  Eanes 
v.  State,  6  Humph.  53;  Johnston  v.  Moorman,  80  Va.  131. 

(278) 


Ch.    10]  ITS  EXECUTION.  g   92 

Lawton  v.  Steele,  152  U.  S.  133  (1894).  This  case  in- 
volved the  constitutionality  of  an  act  of  the  Legislature 
of  the  State  of  New  York  which  forbade  the  taking  of 
fish  in  Lake  Ontario  by  any  device  other  than  a  hook 
and  line;  providing  that  any  net  or  pound  maintained 
or  found  within  those  waters  should  he  held  a  public 
nuisance;  directing  that  it  should  be  the  duty  of  each 
and  every  game  constable  to  seize  and  forthwith  destroy 
the  same;  enacting  that  no  action  of  damages  should 
lie  or  be  maintained  for  or  on  account  of  any  such  seizure 
or  destruction.  The  facts  in  this  case  were  undisputed. 
Certain  nets  had  been  sel  by  the  plaintiff,  a  fisherman, 
within  the  prohibited  waters,  which  had  been  destroyed 
by  the  defendant,  a  fish  warden. 

Mr.  Justice  Brown  delivered  the  opinion,  which  !'<»1 
lows:  The  extent  and  limits  of  what  is  known  as  the 
police  power  has  been  a  fruitful  subject  of  discussion  in 
the  Appellate  Court  of  every  state  in  the  Union.  It  is 
universally  conceded  to  justify  the  destruction  or  abate- 
ment by  summary  proceedings  of  what  may  be  regarded 
as  a  public  nuisance.  It  is  not  easy  to  draw  the  line 
between  the  cases  where  the  property  illegally  used  may 
be  destroyed  summarily,  and  where  judicial  proceedings 
are  necessary  for  its  condemnation.  If  the  property  were 
of  great  value,  as  for  instance,  if  it  were  a  vessel  employed 
for  smuggling,  it  would  be  putting  a  dangerous  power 
in  the  hands  of  a  customs  officer  t<>  permit  him  to  sell  or 
destroy  it  as  a  public  nuisance,  and  the  owner  would 
have  good  cause  to  complain  of  such  act  as  depriving 
him  of  his  property  withoul  due  process  of  law.  But 
where  the  property  is  of  trifling  value  and  its  destruction 
is  necessary  to  effed  (he  objeel  of  ;i  certain  statute,  we 

(279) 


«   93  ADMINISTRATIVE    LAW.  \Ch.    10 

think  it  is  within  the  power  of  the  Legislature  to  order 
its  summary  abatement.  The  value  of  the  nets  in  ques- 
tion was  but  $15  apiece.  Upon  the  whole,  we  agree  in 
holding  this  act  constitutional.73 

§  93.     Demand. 

These  cases  give  a  large  conception  of  what  due  pro- 
cess of  law  is,  and  what  is  not  due  process  of  law.  Much 
force  may  be  used  in  administration  and  yet  all  that  is 
done  be  due  process.  So  that  whether  it  is  due  process 
or  not  depends,  it  would  seem,  in  a  practical  case,  upon 
what  has  been  the  practice  in  government.  Proprieties 
and  improprieties  in  government  are  for  the  most  part 
matters  of  usages  and  conventions. 

The  leading  case  on  this  whole  question  is  Murray's 
Lessee  v.  Hoboken  Company,  18  How.  272  (1855).  The 
lands  in  question  in  this  case  had  first  been  levied  upon 
by  virtue  of  what  is  denominated  a  distress  warrant  is- 
sued by  the  Solicitor  of  the  Treasury  upon  his  own  mo- 
tion. The  Collector  was  in  default  to  the  Government 
in  this  case  and  his  lands  had  been  levied  upon  in  ac- 
cordance with  an  act  of  Congress,  which  authorized 
this  warrant.  The  question  certified  was  whether  the 
effect  of  the  proceeding  authorized  by  the  act  in  question 
was  to  deprive  the  party  against  whom  the  warrant  is- 
sued from  the  Treasury  Department  of  his  liberty  and 
property  without  due  process  of  law. 

73  Seizure.— Lawton  v.  Steele,  152  U.  S.  133;  The  Bolina,  1  Gall. 
75;  People  v.  Simon,  176  111.  171;  Colon  v.  Lisk.  153  N.  Y.  196; 
Kellar  v.  Savage,  20  M.  E.  199;  Osborn  v.  Charlevoix  Cir.  Judge,  114 
Mich.  665;  Hines  v.  Chambers,  29  Minn.  7;  Tellefsen  v.  Fee,  168  Mass. 
188;  Ela  v.  Shepard,  32  N.  H.  277;  Ex  parte  Keeler.  45  S.  C.  544: 
Martin  v.  Snowden,  18  Grat.  142:  State  v.  Sponaugle.  4F,  W.  Va.  430; 
Houston  v.  State,  98  Wis.  486. 

(280) 


Ch.    10  |  ITS  EXECUTION.  <   93 

The  court,  by  Mr.  Justice  Curtis,  held  that  the  law- 
was  constitutional :  It  is  due  process  of  law.  It  was  a 
settled  usage  and  order  of  proceedings  of  the  common 
statutory  law  of  England  that  summary  process  should 
be  used  for  the  recovery  of  debts  to  the  crown,  especially 
those  due  from  receivers  of  revenue.  The  power  to  col- 
lect and  disburse  revenue  and  to  make  all  laws  which 
will  be  necessary  and  proper  for  carrying  that  power 
into  effect  includes  all  known  appropriate  means  of 
effectually  collecting  and  disbursing  that  revenue  unless 
some  such  means  should  be  forbidden  by  the  Constitu- 
tion. The  recovery  of  public  duties  by  this  summary 
process  of  distress  issued  by  some  public  officer  author- 
ized by  the  law  is  an  instance  of  redress  of  a  particular- 
kind  of  public  wrong  by  a  special  process.  The  action  of 
the  executive  power  upon  matters  committed  to  its  de- 
termination by  constitutional  law  is  conclusive. 

This  point  is  worth  repetition — Weimer  v.  Banbury, 
30  Mich.  201  (1874).  is  a  like  case.  A  City  Treasurer 
was  in  default  to  a  County  Treasurer  for  taxes  given  over 
to  him  to  collect  for  the  county.  Thereupon  the  County 
Treasurer,  under  a  statute,  issued  a  warrant  directed  to 
the  Sheriff  to  levy  upon  all  properties  of  the  City  Treas- 
urer. The  Sheriff  seized,  advertised  and  sold  certain 
property  as  directed  in  the  statute.  This  was  the  ires 
pass  charged  in  the  declaration. 

The  opinion  was  by  Mr.  Justice  Cooley;  it  is  one  of 
the  best  discussions  upon  the  law  governing  adminis- 
tration that  there  is  in  our  books:  It  is  claimed  that 
such  summary  process  as  gives  the  party  whose  prop- 
erty is  seized  no  opportunity  to  contest  the  claim  set  up 
against   him   cannot  be  due  process  of  law.     There   is 

(281  i 


jj    94  ADMINISTRATIVE    LAW.  l[Ch.    10 

nothing  in  these  words,  however,  that  necessarily  im- 
plies that  due  process  of  law  must  be  judicial  process. 
Much  of  the  process  by  means  of  which  government  is 
carried  on  and  the  order  of  society  is  maintained  is 
purely  executive  or  administrative.  Deprivations  of 
liberty  or  property  must  often  take  place  through  the 
action  of  ministerial  or  executive  officers  or  functiona- 
ries where  it  would  never  be  supposed  that  the  common 
law  would  afford  a  redress.  While  a  day  in  court  is  a 
matter  of  right  in  judicial  proceedings,  in  administrative 
proceedings  it  is  otherwise,  since  they  rest  upon  differ- 
ent principles.  Summary  process  to  enforce  payment 
by  delinquent  or  defaulting  tax  collector  was  usual  and 
known  at  the  time  of  the  adoption  of  our  Constitution  ; 
it  was,  therefore,  due  process  of  law.74 

§  94.     Distraint. 

These  summary  powers  in  administration  are  most 
obvious  in  matters  affecting  the  collection  of  taxes  from 
tax  payers.  State  National  Bank  v.  Morrison,  1  McCrary, 
204  (1874),  is  one  ease  from  the  mass  of  cases  upon  that 
subject.  This  was  an  action  brought  against  a  Deputy 
Collector  of  Internal  Revenue  to  recover  the  amount 
seized  by  him  in  satisfaction  of  the  tax  upon  the  earn- 
ings of  the  bank.  The  bank,  it  appeared,  had  refused  to 
make  any  return  of  its  condition.  But  a  tax  had  been 
assessed  against  it.  Thereupon,  a  warrant  was  issued 
by  the  Collector  to  the  Deputy  Collector  commanding 

7*  Demand. — Murray's  Lessee  v.  Hoboken  L.  &  I.  Co.,  18  How.  272: 
Springer  v.  United  States.  102  U.  S.  594;  Baltimore  v.  Hopkins  Hos- 
pital, 56  Md.  46;  Nelson  Lumber  Co.  v.  McKinnon,  61  Minn.  222; 
Weimer  v.  Banbury,  30  Mich.  201;  Wilson  v.  Salem,  24  Ore.  509; 
Musser  v.  Adair,  55  Oh.  St.  472;   State  v.  Allison.  8  Heisk.  3. 

(282) 


Ch.  10]*  ITS  EXECUTION.  <    94 

him  to  distrain  upon  the  goods  and  chattels  of  the 
bank.  This  was  done.  The  bank  now  brings  suit  upon 
the  basis  that  all  that  has  been  done  was  illegal  and  void, 

Nelson,  the  District  Judge,  held  the  officer  entitled 
to  judgment :  The  act  of  Congress  imposed  the  tax  upon 
the  income  of  the  bank.  These  taxes  the  bank  refused 
to  pay  after  due  notice  and  demand,  and  the  Collector 
very  properly  under  authority  vested  in  him  by  the  ad 
of  Congress  proceeded  to  distrain  for  the  same.  The 
proceedings  for  the  levy  of  public  revenue,  indeed,  al- 
most universally  are  conducted  without  judicial  forms. 
Where  such  action  is  not  required,  the  proceedings  are 
regarded  as  purely  administrative,  and  any  hearing  al- 
lowed parties  in  their  process  is  but  as  a  means  of  en- 
lightening the  Revenue  Officers  upon  tin1  facts  which 
should  govern  their  action.  This  has  been  so  from 
time  immemorial ;  and  it  has  never  been  supposed  that 
the  tax  payer  had  a  constitutional  right  to  resist  the  tax 
because  he  never  had  a  judgment  against  him  on  a  judi- 
cial hearing  to  fix  the  amount. 

A  case  that  is  always  prominent  in  any  discussion  of 
these  problems  is  McMillen  v.  Anderson,  95  U.  S.  37 
(1877).  The  defendant,  a  tax  collector  of  the  State  of 
Louisiana,  seized  property  of  the  plaintiff  and  was  about 
to  sell  it  for  the  payment  of  a  license  tax  for  which  the 
plaintiff  was  liable;  in  accordance  with  the  laws  of  Lou- 
isiana the  plaintiff  brought  an  action  of  trespass  on  ac- 
count of  the  sale.  The  defendant  pleaded  that  the  seizure 
was  for  taxes  due,  and  that  his  duty  as  collector  required 
him  to  make  it.  On  full  hearing  the  state  courts  sus 
tained  his  defense.  This  was  a  writ  of  error  upon  the 
ground  that  his  proceedings  did  not  give  due  process  of 
law. 

(283) 


§   95  ADMINISTRATIVE    LAW.  [Ch.    10 

Mr.  Justice  Miller  on  that  point  said:  Looking  at 
the  Louisiana  statute  here  assailed  Ave  feel  bound  to 
say  that  if  it  is  void  upon  the  ground  assumed,  the  reve- 
nue laws  of  nearly  all  of  the  states  are  void  for  the  same 
reason.  The  mode  of  assessing  taxes  by  all  governments 
is  necessarily  summary,  that  it  may  be  speedy  and 
effectual.  By  summary  is  not  meant  arbitrary  or  illegal 
or  unequal.  It  must  under  our  constitution  be  lawfully 
done.  But  that  does  not  mean,  nor  does  the  phrase 
due  process  of  law  mean,  by  a  judicial  proceeding.  The 
nation  from  whom  we  inherit  the  phrase  due  process  of 
law  has  never  relied  upon  the  courts  of  justice  for  the 
collection  of  her  taxes.  We  need  not  go  here  into  the 
literature  of  that  constitutional  provision,  because  in 
any  view  that  can  be  taken  of  it  the  statute  here  does  not 
violate  it,  as  it  gives  an  opportunity  to  be  heard.75 

§  95.     Conclusion. 

These  cases  in  this  discussion  point  to  a  central  prin- 
ciple. The  question  is,  what  is  due  process  of  law  for 
the  administration?—  not,  what  would  be  due  process  of 
law  for  the  judiciary?  It  is  a  necessity  that  the  processes 
of  administration  should  be  summary.  Outright  enforce- 
ment is  the  characteristic  thing  in  the  action  of  the  ad- 
ministration. The  executive  must  dominate  the  situa- 
tion or  its  administration  will  prove  a  failure.  The  law 
concedes  this.  Much  that  is  done  by  the  administration 
in  a  summary  waj^  is  yet  held  not  to  violate  the  rule 
which  requires  due  process  of  law. 

"5  Distraint. — Davidson  v.  New  Orleans.  96  U.  S.  105;  Palmer  v. 
McMahon,  133  U.  S.,  669;  Winona,  etc.,  Land  Co.  v.  Minnesota,  159  U. 
S.  537;  Commissioners  v.  Reeves,  148  Ind.  472;  McMillen  v.  Anderson. 
27  La.  Ann.  19;  Eames  v.  Savage,  77  Me.  222;  McMahon  v.  Palmer. 
102  N.  Y.  176;  Gibson  v.  Mason,  5  Nev.  302:  State  v.  Wilson.  121 
N.  C.  454;  Cleveland  v.  Tripp,  13  R.  I.  64;  State  v.  Sponaugle.  45 
W.  Va.  422;  Violett  v.  Alexandria,  92  Va.  561. 

(  2841 


CHAPTER  XI. 

THE    LEGISLATION   OF   THE    ADMINISTRATION. 

§     96.  Introduction. 

97.  Written  Rules. 

98.  Scope. 

99.  Extent. 

100.  Unwritten  Rules. 

101.  Validity. 

102.  Propriety. 

103.  Conclusion. 

§  96.     Introduction. 

As  has  been  remarked,  the  whole  of  administration  is 
governed  to  a  greater  or  a  lesser  extent  by  fixed  rules. 
These  rules  are  made  by  the  executive  itself  in  the  course 
of  administration  to  facilitate  the  enforcement  of  the 
law.  In  part  these  rules  are  written,  then  they  are 
called  regulations;  in  part  they  are  unwritten,  then  they 
are  called  usages.  The  general  result  is  a  definiteness 
in  usual  administration.  The  situation  that  is  found  is 
this:  When  the  law  is  put  upon  the  statute  book  ii  is 
not  specific  enough  for  administration.  It  requires  fur- 
ther elucidation.  This  is  the  office  of  the  legislation 
which  is  done  by  the  administration.  That  is,  the  ad- 
ministration  first  of  all  puts  the  law  in  shape  for  con- 
venient administration.  The  force  of  these  regulations 
that  thus  accompany  the  statute  is  the  legal  problem. 
The  general  conception  is  that  these  regulations  have 
the  force  which  any  governmental  action  has.  This  is 
usually  summed  up  in  the  ordinary  decision  by  the  state- 
ment  that  these  regulations  have  the  force  of  law. 

(285) 


£    96  ADMINISTRATIVE    LAW.  [Ch.    11 

The  position  of  such  regulations  is  seen  in  a  long  series 
of  decisions.  An  early  case  that  settled  the  matter  is 
the  United  States  v.  Eliason,  16  Pet.  201  (1842).  This 
was  assumpsit  against  Eliason  for  a  balance  against  him 
on  the  books  of  the  government  brought  by  the  United 
States.  An  agreed  ease  was  made  up  from  which  it  ap- 
peared that  the  point  in  issue  was  the  force  that  should 
be  attached  to  certain  army  regulations  under  which  the 
defendant  had  acted. 

The  opinion  of  the  court  was  by  Mr.  Justice  Daniel: 
The  power  of  the  executive  to  establish  rules  and  regula- 
tions for  the  government  of  the  army  is  undoubted.  The 
Secretary  of  War  is  the  regular  constitutional  organ 
of  the  President  to  promulgate  such  rule.  Such  regula- 
tion cannot  be  questioned  or  defined  because  they  may 
be  thought  unwise  or  mistaken.  The  right  of  so  con- 
sidering and  treating  the  authority  of  the  executive, 
vested,  as  it  is,  with  the  command  of  the  military  and 
naval  forces,  would  be  a  complete  disorganization  of 
both  the  army  and  the  navy.  A  regulation  has  the  force 
of  law  within  the  sphere  of  its  legal  operation. 

The  regulations  upon  examination  of  the  situation 
will  be  found  to  he  as  multifarious  as  the  statutes 
upon  which  they  depend.  These  regulations  represent 
the  exercise  of  a  very  considerable  power  on  the  part  of 
public  officers  in  their  relation  with  the  public.  And 
they  serve  a  purpose  in  the  administration  not  common- 
ly appreciated.  There  are  innumerable  instances  of  these 
regulations.  The  regulations,  directions,  circulars,  in- 
structions, forms,  promulgated  by  the  executive  depart- 
ment confront  the  citizen  in  all  his  dealings  with  the 
government.  So  far  as  these  are  all  put  forth  in  due 
(286) 


Ch.    11]  ITS  LEGISLATION.  <    97 

course  of  administration  the  citizen  must  conform  to 
them.  This  is  the  chief  office,  indeed,  of  the  regulation 
to  reduce  administration  to  a  regular  system  for  the 
ordinary  case  that  arises  in  administration. 

§  97.     Written  rules. 

That  is  the  general  doctrine,  then,  that  the  regulations 
of  the  executive  department  under  certain  circumstances 
are  enforced  as  law.  The  next  point  in  the  discussion 
must  he  the  determination  of  these  circumstances.  The 
case  of  In  re  Smith,  23  Ct.  of  CI.  455  l  1888),  is  encyclo- 
paedic in  its  treatment  of  this  question.  The  only  for- 
mal issue  in  that  case  was  whether  the  Secretary  should 
order  the  stoppage  of  the  pay  of  a  paymaster  for 
a  payment  made  by  him  in  good  faith  without  other 
authority  for  his  protection  than  the  army  regulation. 
This  involved  an  inquiry  into  the  position  of  such  regula- 
tion before  the  law. 

Upon  this  point  Mr.  Justice  NOTT  said:  Congress  has 
the  power  to  make  rules  for  the  government  of  the  mili- 
tary forces.  Congress  has,  however,  from  an  early  day 
proceeded  upon  the  theory  that  the  power  might  be  dele- 
gated to  the  President.  It  is  well  settled  that  with  or 
without  action  of  Congress  regulations  have  the  force 
of  law  when  founded  upon,  first,  the  President's  consti- 
tutional powers  ;is  Commander-in-Chief  of  the  army,  or 
second,  the  administration  of  statutes  by  the  President 
which  have  been  enacted  by  Congress  in  reference  to  the 
military  forces.  All  of  these  regulations  have  the  same 
validity.70 

7» Written  Rules.—  United  States  v.  Eliason,  16  Pet.  291;  United 
States  v.  Symonds,  120  u.  S.  46;  Maddux  v.  United  States,  20  Ct, 
of  CI.  193;   In  re  Smith.  23  Ct.  of  CI.  455;   United  States  v.  Ormsbee', 

(287) 


§    98  ADMINISTRATIVE    LAW.  [Ch.    11 

§  98.     Scope. 

The  extent  of  the  scope  of  the  regulation  is  seen  in 
the  case  of  Manning,  6  Lawrence,  13  (1885).  July  21, 
1884,  Eliza  Mauran,  as  administratrix  de  bonis  non  of 
Suchet  Mauran,  second,  deceased,  recovered  Judgment 
against  the  United  States  in  the  Courts  of  Commission- 
ers of  Alabama  Claims  for  $91,500.96,  on  a  petition  filed 
in  said  court,  January  4,  1883.  Said  judgment  was 
rendered  on  a  claim  arising  out  of  the  capture  of  the 
ship  "Marshall,"  by  the  Confederate  cruisers,  "V.  H. 
Ivy"  and  '-Music."  The  transcript  of  the  judgments  of 
said  court  certified  by  the  clerk  thereof  to  the  Secretary 
of  State,  and  transmitted  by  him  to  the  Secretary  of  the 
Treasury,  in  pursuance  of  the  act  of  June  3,  1884,  shows 
that  C.  T.  and  T.  H.  Russell  of  Boston  were  the  attorneys 
of  record  for  the  plaintiff  in  the  above  mentioned  judg- 
ment. Said  claim  was  adjusted  by  the  Fifth  Auditor, 
and  was  certified  by  the  First  Comptroller  for  payment 
to  the  judgment  creditor,  with  direction  that  the  draft 
issued  in  payment  be  delivered  in  care  of  the  attorneys 
of  record.  J.  V.  Manning  requested  the  First  Comptrol- 
ler to  direct  the  draft  issued  in  payment  of  said  judgment 
to  be  delivered  to  him. 

The  decision  by  Lawrence,  the  Comptroller,  is  worth 
full  quotation  :  The  Secretary  of  the  Treasu^v  '«*,  author- 
ized by  statute  to  prescribe  regulations  nut  inconsistent 
with  law,  for  the  performance  of  the  business  of  the 
Treasury  Department.     This  statute  is  merely  deelara- 

74  Fed.  207;  United  States  v.  Goodsell,  84  Fed.  155;  Orne  v.  Barstow. 
175  Mass.  193;  Matter  of  Spangler,  11  Mich.  298;  Monette  v.  Cratt. 
7  Minn.  247;  State  v.  Davis,  69  N.  H.  350;  Peters  v.  United  States. 
2  Okl.  123. 

(288) 


Ch.    11]  ITS  LEGISLATION.  <    93 

tory,  since,  without  it,  the  power  to  prescribe  such  regu- 
lations is  an  incident  of  the  general  duties  of  the  Secre- 
tary. In  statutes  incidents  are  always  supplied  by  in- 
tendments. The  payment  of  claims  against  the  United 
States  is  a  part  of  the  business  of  the  Treasury  Depart- 
ment, and  is,  therefore,  a  proper  subject  for  regulations. 
The  Secretary  has,  by  a  regulation — which  has  been 
quoted  in  the  argument  in  this  case,  and  has  the  force  of 
law — provided  that,  in  cases  certified  for  payment  to  the 
Treasury  Department  by  any  commission  created  by  Con- 
gress, the  persons  certified  by  said  Court  or  Commission 
as  the  attorneys  of  record  shall  be  regarded  as  such  by 
this  Department,  and  be  entitled  to  receive  the  drafts 
in  such  cases.  A  subsequent  regulation  declares"  that : 
The  accounting  of  officers  will  decide  what  persons  as  at- 
torneys or  claimants  are  entitled  to  receive  drafts  under 
the  rules  of  the  Department.  These  regulations  grow 
out  of  the  mode  of  paying  claims  against  the  United 
States.  The  usage  is,  as  to  claims  certified  for  payment 
by  the  First  Comptroller,  that  he  inserts  in  the  Treasury- 
warrant  authorizing  payment  a  direction  to  the  Treas- 
urer to  deliver  to  the  proper  claimant,  or  his  attorney 
specified,  the  Treasury  draft  issued  to  make  payment. 
Thus,  the  question  is  now  to  be  decided  by  the  Firs: 
Comptroller:  to  whom  shall  the  Treasurer  deliver  the 
draft  in  this  case?  And  it  is  clear  that,  if  the  general 
usage  based  on  the  regulations  mentioned  is  to  prevail, 
the  draft  must  be  delivered  to  the  attorneys  of  record — 
C.  T.  and  T.  H.  Russell. 

This  last  case  is  no  mere  assertion  by  the  Executive 
Department;  the  latest  decision  by  the  Judicial  Depart- 
ment is  to  the  same  effect — Boske  v.  Comingore,  177  F. 

(289) 

A  dm.  Law — 19. 


g    civs  ADMINISTRATIVE    LAW.  [Ch.    11 

S.  15!)  (  L900  i.  A  collector  of  Internal  Revenue  was  ad- 
judged by  a  Court  in  Kentucky  to  be  in  contempt  because 
he  refused  while  giving  his  deposition  in  a  suit  pending 
in  a  state  court,  to  file  copies  of  certain  reports  made 
by  distillers,  which  reports  were  in  his  custody  as  a 
subordinate  officer  in  the  Treasury  Department.  He 
based  his  refusal  upon  a  regulation  of  that  department 
which  provided  that  no  subordinate  had  any  right  to 
permit  the  use  of  papers  in  his  custody  for  any  purpose 
outside  of  the  collection  of  revenue.  The  collector,  im- 
prisoned for  this  refusal,  petitioned  for  a  writ  of  habeas 
corpus  upon  the  ground  that  his  detention  was  in  viola- 
tion of  the  laws  of  the  United  States. 

The  federal  court  discharged  the  petitioner.  Mr.  Jus- 
tice Harlan  explained  :  Congress  may  use  any  means  ap- 
pearing to  it  most  eligible  and  appropriate  which  are 
adapted  to  the  end  to  be  accomplished.  Can  it  be  said 
that  to  invest  the  Secretary  of  the  Treasury  with  authori- 
ty to  prescribe  regulations  not  inconsistent  with  law  for 
the  conduct  of  the  business  of  his  Department  was  not  a 
means  appropriate  and  plainly  adapted  to  the  successful 
administration  of  the  affairs  of  that  Department?  Man- 
ifestly not.  This  brings  us  to  the  question,  whether  it 
was  inconsistent  with  law  for  the  Secretary  to  adopt  this 
regulation  in  this  case.  The  Secretary  deemed  the  regu- 
lation a  wise  and  proper  one,  and  we  cannot  perceive 
that  his  action  went  beyond  his  authority.  In  determin- 
ing whether  the  regulations  adopted  by  him  are  con- 
sistent with  law,  we  must  apply  the  rule  of  decision 
which  controls  when  an  act  of  Congress  is  assailed  as 
(290) 


Ch.ll]  ITS  LEGISLATION.  §93 

not  being  within  the  powers  conferred  upon  it  by  the 
Constitution ;  that  is  to  say,  a  regulation  should  not  be 
disregarded  or  annulled  unless  in  the  judgment  of  the 
court  it  is  plainly  and  palpably  inconsistent  with  law. 
Those  who  insist  that  such  a  regulation  is  invalid  must 
make  its  invalidity  so  manifest  that  the  court  has  no 
choice  except  to  hold  that  the  Secretary  has  exceeded  his 
authority  and  employed  means  that  are  not  at  all  appro- 
priate to  the  end  specified  in  the  Act  of  Congress. 

This  regulation,  it  thus  appears,  is  not  legislation ;  it  is 
administration.  The  authority  for  all  regulation  is  to 
be  found  in  the  executive  department  itself.  This  is  the 
part  of  the  function  of  the  administration  to  prescribe 
methods  for  the  enforcement  of  the  law.  This  is  an  in- 
herent power,  then,  the  employment  of  a  method  inci- 
dental to  due  administration.  Statutes  are  by  necessity 
couched  in  general  terms,  but  these  general  terms  carry 
with  them  by  necessity  all  powers  requisite  to  accom- 
plish their  object.  This  is  so  whether  the  law  that  goes 
before  indicates  that  regulation  is  to  follow  after  or 
whether  the  law  is  silent  as  to  regulation.  Often  a  body 
of  regulations  is  framed  by  the  head  of  an  executive 
department  upon  no  other  basis  than  that  the  matter 
was  given  over  to  be  administered  under  his  direction. 
All  of  these  regulations,  if  they  are  no  more  than  admin- 
istration, have  the  force  of  law.77 

"  Scope.— United  States  v.  Eliason,  16  Pet.  291;  Kurtz  v.  Moffitt. 
115  U.  S.  503;  Real  Estate  Sav.  Bank  v.  United  States,  16  Ct.  of  CI. 
336;  In  re  Smith,  23  Ct.  of  CI.  455;  United  States  v.  Badeau,  31  Fed. 
697;  United  States  v.  Ormsbee,  74  Fed.  209;  Wilkins  v.  United  States. 
96  Fed.  840;  United  States  v.  Dastervignes,  118  Fed.  199;  Monette  v. 
Cratt,  7  Minn.  247:    Peters  v.  United  States.  2  Okl.  123. 

(291) 


cj    99  ADMINISTRATIVE    LAW.  [Qh.    11 

§  99.     Extent. 

Regulation  is  then  but  a  method  of  administration. 
The  consequences  that  follow  upon  this  finding  are  of 
fundamental  importance  in  the  working  out  of  the  prob- 
lem of  the  scope  of  the  regulation.  In  administration, 
as  has  been  seen,  certain  action  is  allowed,  but  certain 
action  i.s  forbidden.  What  is  allowed  to  be  done  is  any- 
thing within  the  law  that  is  in  execution  of  it;  what  is 
forbidden  to  be  done  is  anything  without  the  law  that 
is  in  extension  of  it.  In  execution  anything  may  be  done 
that  is  administration,  nothing  may  be  done  that  is  legis- 
lation— is  the  principal  distinction.  All  this  is  restate- 
ment of  the  law  governing  the  functions  of  the  adminis- 
tration; but  in  this  instance  of  regulation  that  law  is 
more  precise  than  in  any  other  application  of  it. 

There  are  two  decisions  upon  two  customs  regulations 
decided  at  about  the  same  time  that  help  to  get  at  the 
limitation  upon  the  regulation.  One  is  Morrill  v.  Jones, 
106  T.  S.  460  ( 1882 ) .  Section  2505,  E.  S.,  provided  that 
certain  animals  ought  to  be  admitted  free  of  duty  under 
proof  satisfactory  to  the  Secretary  of  the  Treasury  and 
under  such  regulations  as  he  might  prescribe.  Article 
383,  treasury  customs  regulations,  provided  that  the  col- 
lector must  be  satisfied  that  the  animals  were  of  superior 
stock.  The  error  assigned  related  to  the  instruction  as 
to  the  effect  of  the  treasury  regulation. 

The  opinion  of  the  Court  was  delivered  by  Mr.  Justice 
Waite:  The  Secretary  of  the  Treasury  cannot  by  his 
regulations  alter  or  amend  a  revenue  law.  All  he  can 
do  is  to  regulate  the  mode  of  proceedings  to  carry  into 
effect  what  Congress  has  enacted.  In  the  present  case 
we  are  entirely  satisfied  that,  the  regulation  acted  on  by 
(292) 


(h.    11]  ITS  LEGISLATION.  g    Km 

The  Collector  was  in  excess  of  the  power  of  the  Secretary. 
The  statute  plainly  includes  animals  of  all  classes.  The 
regulation  seeks  to  confine  its  operation  to  animals  of 
superior  stock.  This  is  manifestly  an  attempt  to  put 
into  the  body  of  the  statute  a  limitation  which  Congress 
did  not  think  it  necessary  to  prescribe.  Congress  was 
willing  to  admit  duty  free  all  animals  specially  imported 
for  breeding  purposes;  the  Secretary  thought  this  priv- 
ilege should  be  confined  to  such  animals  as  were  adapted 
to  the  improvements  of  breeds  already  in  the  United 
States.  In  our  opinion  the  object  of  the  Seceretary 
could  only  be  accomplished  by  an  amendment  of  the 
law.     That  is  not  the  office  of  a  Treasury  regulation. 

The  other  is  Merritt  v.  Welsh,  104  U.  S.  694  (1881). 
This  was  an  action  brought  to  recover  duties  alleged  to 
have  been  illegally  exacted  by  the  Collector  of  the  Port 
of  New  York.  On  certain  sugars  imported  by  them  the 
defendant,  under  general  instructions  from  the  Treasury 
Department,  rated  them  at  a  higher  grade  than  their 
standard  in  color,  according  to  a  chemical  test  applied 
under  Treasury  instructions.  The  issue  was  as  to  the 
validity  of  this  regulation. 

Mr.  Justice  Bradley  said :  The  test  described  by  the 
statute  is  Dutch  standard  in  color.  The  first  question 
that  naturally  arises  is,  if  Congress  desires  the  applica- 
tion of  the  chemical  test  in  order  to  determine  the  sac- 
charine strength  of  (lie  sugar,  why  does  im!  Congress 
say  so?  There  are  two  very  distincl  modes  of  distin- 
guishing sugar.  One  is  determined  by  the  color  stand- 
ard, the  other  by  a  chemical  standard.  Which  of  these 
did  Congress  adopt?  We  think,  clearly,  the  former.  If 
it  he  found  by  experience  that  the  standard  of  the  stat* 

(293  l 


§    99  ADMINISTRATIVE    LAW.  [Q1#    J  ]_ 

ute  is  a  fallacious  one,  can  the  executive  department  sup- 
ply the  defects  of  legislation  ?  Congress  alone  has  the 
authority  to  levy  duties.  Its  will  alone  is  to  be  sought. 
These  decisions  commend  themselves,  although  the 
question  was  close  enough  in  each  case  to  justify  litiga- 
tion of  it.  The  same  fundamental  principle  is  involved 
in  each  of  them,  that  the  sole  external  limitation  upon 
the  regulation  is  the  law  itself.  It  is  the  statute  that 
gives  the  warrant  for  administration,  so  at  that  point 
where  the  legislation  stops,  the  administration  must  stop 
also,  for  when  the  authority  ceases,  the  exercise  of  it 
must  cease.  When  a  regulation  is  found  with  no  posi- 
tive law  in  support  of  it  the  regulation  is  thus  held  void ; 
how  much  more  will  the  regulation  be  held  void  when  it 
is  found  that  it  is  inconsistent  with  positive  law.  That 
the  law  is  the  limitation  upon  the  regulation  is  in  that 
case  most  evident.78 

§  100.     Unwritten  rules. 

To  note  an  analogy,  it  may  be  said  that  the  adminis- 
tration has  statute  law  of  its  own — its  regulations — and 
that  the  administration  has  as  well  common  law  of  its 
own — its  customs.  It  is  the  obvious  fact  that  the  rules 
governing  administration  are  both  written  and  unwrit- 
ten ;  and  so  long  as  administration  proceeds  by  common 
consent  in  subjection  with  a  body  of  rules,  it  makes  no 
difference  how  many  of  those  rules  are  written  and  how 
many  of  them  are  unwritten.     It  is  more  plain  to  de 

T8  Extent. — Merritt  v.  Welsh,  104  U.  S.  694;  Morrill  v.  Jones,  106 
U.  S.  466;  Boske  v.  Comingore,  177  U.  S.  459;  Landraru  v.  United 
States,  16  Ct.  of  CI.  74;  Maddux  v.  United  States,  20  Ct.  of  CI.  193; 
In  re  Smith,  60  Fed.  599;  United  States  v.  Goodsell.  84  Fed.  155; 
Matter  of  Spangler,  11  Mich.  298;  State  v.  Davis,  69  N.  H.  350. 
(294) 


Ch.    11]  ITS  LEGISLATION.  g    100 

duce  written  rules  than  to  induce  uiiwritten  rules.  But 
the  various  acts  in  administration  require  for  their  va- 
lidity an  establishment  of  the  unwritten  usage  of  the  de- 
partments in  conformity  with  which  they  have  been  done. 

The  leading-  case  is  without  doubt  United  States  v, 
Macdaniel,  7  Peters,  1  (1833).  This  was  an  action 
brought  by  the  government  to  recover  a  balance  charged 
against  an  offirer  on  the  books  of  the  Treasury.  In  de- 
fense the  defendant  pleaded  as  set-off  a  claim  for  serv- 
ices rendered  to  the  government  by  orders  of  the  heads 
of  departments.  There  was  an  act  of  Congress  provid- 
ing for  the  same ;  and  therefore  the  Auditor  of  the  Treas- 
ury would  not  allow  it.  The  claim  arose  under  the  cus- 
tom as  to  a  per  cent  upon  appraisements. 

The  opinion  of  Mr.  Justice  Daniel  is  worth  extend- 
ed quotation :  The  limitation  is  suggested  on  the  pow- 
er of  the  court  that  a  claim  which  requires  legislative 
sanction  is  not  a  proper  offset,  either  before  the  treas- 
ury officers  or  the  court.  But  there  may  be  cases  in 
which,  the  services  having  been  rendered,  a  compensa- 
tion may  be  made  within  the  discretion  of  the  head  of 
the  department;  and  in  such  cases  the  court  and  jury 
will  do,  not  what  the  auditor  was  authorized  to  do, 
but  what  the  head  of  the  department  should  have  dono 
in  sanctioning  an  equitable  allowance.  A  practical 
knowledge  af  the  actions  of  any  one  of  the  great  depart- 
ments of  the  government  must  convince  every  person 
that  the  head  of  a  department  in  the  distribution  of  its 
duties  and  responsibilities  is  often  compelled  to  exer- 
cise his  discretion.  He  is  limited  in  the  exercise  of  his 
powers  by  the  law,  but  it  does  not  follow  that  he  must 
show  a  statutory  provision  for  everything  he  does.     No 

(295) 


§   100  ADMINISTRATIVE    LAW.  [Ch.    ll 

government  could  be  administered  on  such  principles. 
To  attempt  to  regulate  by  law  the  minute  movements  of 
every  part  of  the  complicated  machinery  of  government 
would  evince  a  most  unpardonable  ignorance  of  the  sub- 
ject. Whilst  the  great  outlines  of  these  movements  may 
be  marked  out  and  limitations  imposed  on  the  exercise 
of  its  powers,  there  are  numberless  things  which  must 
be  done  that  can  neither  be  anticipated  nor  defined,  and 
which  are  essential  to  the  proper  action  of  the  govern- 
ment. Hence  usages  have  been  established  in  every  de- 
partment of  the  government  which  have  become  a  kind 
of  common  law,  and  regulate  the  rights  and  duties  of 
those  who  act  within  their  respective  limits;  and  no 
Change  of  such  usages  can  have  a  retrospective  effect, 
but  must  be  limited  to  the  future  usage.  It  cannot  al- 
ter, but  it  is  evidence  of  the  construction  given  to  it  and 
must  be  considered  binding  on  past  transactions. 

The  leading  ruling  by  the  departments  upon  this  sub- 
ject is  without  doubt  the  Lost  Bond  Case,  5  Lawrence, 
197  (1884).  On  April  22,  1861,  one  Patterson,  Secre- 
tary o!'  said  Fidelity  Insurance,  Trust  and  Safe  Deposit 
Company,  transmitted  to  the  Secretary  of  the  Treasury 
two  bonds  numbered  4225  and  31359  and  coupons  at- 
tached, with  a  letter  saying  they  were  enclosed  for  re- 
demption, and  adding  "for  which  please  remit  principal, 
and  overdue  interest."  They  were  respectively  endorsed 
as  follows:  "Pay  to  the  Secretary  of  the  Treasury  for 
redemption.  R.  Patterson,  Treasurer.'"  The  First 
Comptroller  advised  the  Secretary  of  the  Treasury  that 
the  claimant  occupies  simply  the  position  of  a  finder, 
and  as  such  has  no  lawful  right  to  demand  payment. 
Payment  was  therefore  refused. 
(296) 


Ch.    11]  ITS  LEGISLATION.  <    KKI 

Laurence,  the  Comptroller,  supported  this:  It  is 
now  well  understood  that  there  is  a  system  of  national 
executive  common  law,  which,  like  the  judicial  common 
law  of  England,  and  of  most  of  our  States,  adapts  itself 
to  conditions  and  circumstances,  and  is  in  constant  pro- 
cess of  development  and  growth.  And  it  has  been  shown 
that  the  executive  national  common  law  is  frequently 
different  from  the  system  of  common  law  which  prevails 
in  courts  even  on  similar  questions.  The  difference 
rests  on  conditions  and  circumstances  which  fully  jus- 
tify it.  In  other  words  the  rules  of  law  applicable  to 
private  persons  are  not  necessarily  adapted  to  the  gov- 
ernment in  the  performance  of  its  obligations,  and  in 
its  relations  to  private  persons.  Hence,  the  question 
now  to  be  decided  must  be  determined  on  principles  of 
national  executive  common  law.  This,  like  all  common 
law,  rests  on  reason.  Law  is  the  perfection  of  reason. 
The  purpose  of  all  common  law  is  to  secure  justice.  The 
real  question,  then,  is,  what  does  justice  require?  What 
does  reason  sanction?  Reason  furnishes  the  founda- 
tions of  justice;  and  this  is  common  law.  The  right  of 
the  government  so  to  retain  bonds  is  settled  by  long 
usage.  The  universal  practice  is,  and  always  has  been, 
for  the  Treasury  Department  to  retain  for  the  lawful 
purpose  of  paying  the  rightful  owner  all  registered  bonds 
presented  for  payment  or  transfer  by  a  party  having  no 
right  to  cither.  And  this  is  now.  ;is  it  has  generally 
been,  the  usage  as  to  coupon  bonds.  This  usage  is 
founded  on  duty,  policy,  and  justice. 

The  whole  doctrine  as  to  the  force  of  usage  is  con 
tained  in  these  two  opinions.      In  order  to  apply  such  a 

<  207  I 


§    101  ADMINISTRATIVE    LAW.  [Ch.    11 

custom  in  any  particular  case  it  must  be  certain  and  de- 
fined. It  must  have  the  shape  of  law,  a  general  rule 
recognized  by  common  consent.  The  usage  of  a  depart- 
ment consists  of  these  rules  under  which  action  is  done, 
upon  which  action  is  based,  and  by  which  action  is  jus* 
tified.  Such  a  usage  is  of  the  same  force  as  law,  as  much 
as  a  regulation  is  of  the  same  force  as  law.  Indeed,  it 
must  be  obvious  that  to  a  greater  or  lesser  extent  an  ad- 
ministration involves  a  customary  law  of  the  service.79 

§  101.     Validity. 

A  common  case  for  the  enforcement  of  this  unwritten 
law  is  seen  when  the  construction  given  to  a  statute  by 
the  administration  is  brought  in  question.  The  leading 
case  is  Edwards'  Lessee  v.  Darby,  12  Wheaton  206 
(1827).  Under  the  North  Carolina  Act  of  1782  for  the 
relief  of  officers  and  soldiers  in  the  Continental  line,  the 
commissioners  determined  that  the  French  Lick  was 
within  the  reservations  of  the  statute  as  public  property. 
The  litigation  in  this  case  at  last  turned  upon  the  con- 
struction of  the  statute  made  by  these  commissioners. 
The  statute  was  ambiguous,  to  be  sure;  but  the  propriety 
of  the  construction  as  an  original  question  was  doubtful 
also. 

Mr.  Justice  Tkumble  said:  In  the  construction  of 
a  doubtful   and 'ambiguous  law,  the  contemporaneous 

7»  Unweitten  Rules. — United  States  v.  Macdaniel,  7  Pet.  1;  Five 
Per  Cent  Cases,  110  U.  S.  485;  Syruonds  v.  United  States,  21  Ct.  of 
CI.  148;  Wilson  v.  United  States,  26  Ct.  of  01.  187;  Holbrook  v. 
Wightman,  31  Minn.  168;  Hilburn  v.  St.  Paul,  etc.,  R.  R.,  23  Mont. 
245;  Hewitt  v.  Schultz,  7  N.  D.  611;  Lockwood  v.  Bank,  9  R.  I.  308; 
Keane  v.  Brygger.  3  Wash.  338. 

(298) 


Ch.    11]  ITS  LEGISLATION.  ;<    jQl 

construction  of  those  who  are  called  upon  to  act  under 
the  law,  are  bound  to  cany  its  provisions  into  effect,  is 
entitled  to  very  great  respect.  The  law  was  not  only 
thus  construed  by  commissioners;,  but  that  construction 
seems  to  have  received  the  sanction  of  the  legislature. 
It  was  a  public  act  done  by  a  public  authorized  agent  of 
the  government,  and  afterwards  recognized  by  the  gov- 
ernment itself.  None  but  the  government  itself  ought, 
therefore,  to  be  permitted  to  call  it  in  question. 

This  paragraph  has  been  quoted  with  approval  in  re- 
peated decisions.  One  of  these  from  the  many  is  United 
States  v.  Hill,  120  U.  S.  169  (1887) .  It  is  the  custom  in 
the  United  States  courts  to  charge  $3  as  fees  in  naturali- 
zation proceedings.  The  clerk  of  the  courts  never  in- 
cluded those  fees  in  his  returns.  The  judges  passed 
upon  his  returns  without  requiring  him  to  include  these 
fees.  It  was  true  that  statute  required  a  return  to  be 
made  of  all  office  fees,  bul  the  construction  of  the  statute 
by  those  concerned  in  its  enforcement  had  never  regard- 
ed such  returns  to  be  made  as  within  the  contemplation 
of  those  statutes. 

Mr.  Justice  Blatchfokd  said :  This  practice  has  had 
the  approval  of  the  Department  of  the  Treasury,  the  De- 
partment of  the  Interior  and  the  Department  of  Justice. 
Until  this  suit  was  brought  it  had  never  been  called  in 
question  by  any  accounting  officer  of  the  government,  nor 
has  Congress  seen  tit  to  put  a  stop  to  it  by  legislation. 
This  construction  of  tin;  statute  in  practice,  concurred 
in  by  all  the  departments  of  the  government  and  con- 
tinued for  so  many  years,  must  be  regarded  as  absolutely 
conclusive  in   its  effect.     If  a   change  of   the  practice 

(299  I 


£    1Q2  ADMINISTRATIVE    LAW.  [(JJj.    11 

should  be  thought  desirable,  it  is  obvious  that  it  should 
be  made  by  Congress  and  not  by  the  Courts.  That  this 
long  practice,  amounting  to  contemporaneous  and  con- 
tinuous construction  of  the  statute,  in  a  case  where  it  is 
doubtful  whether  the  statute  requires  return  of  the  dis- 
puted  fees,  and  the  heads  of  the  departments  have  con- 
curred in  an  interpretation  in  which  those  concerned  are 
confided — in  the  construction  of  a  doubtful  and  ambigu- 
ous law,  contemporaneous  construction  by  those  who  are 
called  upon  to  act  under  the  law  is  entitled  to  great 
respect. 

This  is  a  salutary  rule  it  must  be  admitted.  The  de- 
partment that  is  most  concerned  with  the  execution  of 
law  is  thus  given  a  prepondering  position  in  the  con- 
struction of  the  statute.  That  comes  about,  it  is  to  be 
noted,  by  the  recognition  of  the  force  of  the  unwritten 
usage  of  the  administration  as  a  law  to  be  taken  into  the 
account.  Of  course  this  construction  must  be  within 
the  bounds  of  the  discretion  vested  in  the  administration. 
The  unwritten  rule  must  be  within  that  as  well  as  the 
written  rule.  But  within  that  sphere  of  influence  the 
operation  of  the  custom  of  the  service  as  a  law  is  rec- 
ognized by  this  line  of  decisions.80 

§  102.     Propriety. 

The  best  evidence  t<»  be  found  of  the  existence  of  these 
unwritten  rules  is  in  the  adjudications  of  the  depart- 
ments based  upon  them.  Hatfield,  17  Land  Dec,  7i» 
(1893).     The   motion    for   rehearing    in    the   matter   of 

-"  Validity.— Edwards'  Lessee  v.  Darby,  12  Wheat.  206;  Robert- 
son v.  Downing,  127  U.  S.  613;  Arthur  v.  United  States,  16  Ct.  of 
CI.  422;  United  States  v.  Union  Pae.  R.  R.,  37  Fed.  555;  Holbrook  v. 
Wightman,  31  Minn.  168;  Keane  v.  Brygger,  3  Wash.  338. 

(.300) 


Ch.    11]  ITS  LEGISLATION.  g    1Q2 

Smith  Hatfield  et  al.  for  certification  of  additional 
homestead  rights  involving  the  question  as  to  the  right 
of  those  who  rendered  service  in  what  were  termed  Mis- 
souri ■Home  Guards  to  the  benefits  of  the  provisions  of 
sections  2304  and  2306  of  the  Revised  Statutes  of  the 
United  States.  This  question  had  repeatedly  been  be- 
fore the  department,  and  the  decisions  have  uniformly 
been  to  the  effect  that  those  who  were  members  of  the 
Missouri  Home  Guards  were  not  entitled  to  the  bene- 
fits of  the  statutes  above  cited. 

Secretary  Smith  ruled :  The  legal  principle  involved 
seems  so  well  settled  by  numerous  decisions  of  the  De- 
partment that  I  am  not  now  called  upon  to  determine  its 
correctness.  Thus,  for  a  number  of  years,  the  rulings 
of  the  Department  have  uniformly  been  to  the  effect 
above  indicated,  and  the  principle  has  become  so  well 
established  as  to  bring  it  within  the  rule  of  stare  decisis, 
and  as  so  settling  a  point  by  decision  that  it  forms  a 
precedent  not  to  be  departed  from.  1  must  therefore  de- 
cline to  disturb  a  ruling  of  so  long  standing  as  that 
which  controls  in  this  case,  and  the  petition  for  re-re- 
view is  overruled. 

The  theory  that  a  previous  decision  is  evidence  of  whai 
the  law  is  prevails  in  administration. —  Eastridge,  S 
Pen.  Dec.  5  (1894).  The  rate  of  pension  allowed  in  the 
invalid  claim  was  |2  per  month,  and  the  amount  so  al- 
lowed from  Oct.  2,  L862,  date  of  soldier's  discharge  from 
the  service,  to  date  of  death,  January  8,  1881,  was  paid 
to  his  widow,  the  appellant  herein.  From  this  action 
an  appeal  was  taken,  wherein  it  was  contended  that  the 
degree  of  disability  shown  in  the  invalid  claim  from  dis- 
charge to  August  15,  1880,  was  fully  one-half  as  much 

(301) 


^    1'  2  ADMINISTRATIVE    LAW.  [Ch.    11 

as  the  total  for  loss  of  a  hand  or  foot.  The  action  of  the 
bureau  was  affirmed  January  15,  1889.  whereupon  claim- 
ant filed  additional  affidavits,  which  were  merely  cumu- 
lative, in  which  affiants  gave  it  as  their  opinion  that  the 
soldier  was  disabled  in  a  degree  entitling  him  to  a  high- 
er rating,  and  were  not  deemed  sufficient  to  justify  the 
bureau  in  again  opening  said  claim  and  rerating  the 
pension.  This  appeal  involves  the  correctness  of  the  ac- 
tion of  the  bureau  refusing  to  reconsider  the  applica- 
tion for  rerating,  or  to  again  rerate  the  appellant's  hus- 
band's pension. 

Secretary  Reynolds  ruled :  Aside  from  the  sufficiency 
of  these  affidavits  it  is  the  well-settled  rule,  established 
by  a  long  line  of  departmental  decisions,  that  in  cases 
of  non-specific  disability,  the  ratings  fixed  at  the  date 
of  the  certificate  and  based  upon  contemporaneous  medi- 
cal examinations,  will  not  be  disturbed  on  account  of 
differences  of  opinion  that  may  subsequently  arise  upon 
an  application  for  rerating.  If  the  placing  of  the  name 
of  an  applicant  upon  the  roll  is  to  be  considered  a  ju- 
dicial act  it  should  only  be  considered  a  judgment  nisi, 
The  proceedings  are  largely  ex  parte  and  from  the  vast 
numbers  of  applicants  the  work  must  be  performed  and 
the  roll  made  up  for  the  most  part  by  the  clerks.  The 
doctrine,  when  adopted  by  the  Department  in  pension 
cases,  simply  becomes  a  rule  which  each  administration 
prescribes  for  itself  as  a  matter  of  policy  or  convenience, 
and  may  be  waived,  suspended,  or  ignored  as  justice, 
public  policy,  or  convenience  requires.  The  facts  in  the 
case  under  consideration,  however,  show  no  reason  for 
deviating  from  the  hitherto  almost  uniform  practice  of 
refusing  to  disturb  decisions  of  former  administration 
(302) 


Ch.    11]  ITS  LEGISLATION.  §    103 

where  neither  fraud  nor  manifest  error  in  law  nor  pal- 
pable mistake  of  fact  is  shown  to  exist. 

The  theory  of  stare  decisis  as  it  is  understood  in  the 
courts  of  law  is  thus  to  a  certain  extent  the  rule  in  the 
offices  of  the  executive  departments.  It  would  be  an  un- 
satisfactory administration  indeed  where  the  determina- 
tion of  each  question  was  different  as  caprice  might  dic- 
tate. What  is  wished  is  an  orderly  administration,  in 
which  precedents  are  regarded,  in  which  the  principles 
involved  in  those  precedents  are  respected,  as  the  cases 
that  are  to  govern  in  future  administration.  That  is 
the  recognition  of  an  unwritten  body  of  law.  No  ad^ 
ministration  that  does  not  proceed  in  that  way  can  suc- 
ceed. At  the  same  time  no  administration  that  does  not 
reserve  discretion  can  succeed  either.81 

§  103.     Conclusion. 

The  requirement  as  to  regulations  in  general  must  be 
that  they  shall  not  be  contrary  to  public  duty.  The  offi- 
cer owes  a  duty  to  all  of  the  public  who  have  any  con- 
cern in  his  exercise  of  his  duties.  It  is  true  that  the. 
officer  may  by  regulation  lay  down  general  rules  for  the 
conduct  of  the  business  of  his  office;  but  these  rules 
must  be  reasonable  in  their  application.  If  these  rules 
in  effect  abridge  the  rights  of  the  public  they  are  void; 
otherwise  they  will  stand.  In  any  particular  case  where 
the  rule  is  applicable,  that  rule  can  be  set  up  against  that 
particular  person.  A  rule  that  is  must  be  in  pursuance 
of  public  duty;  it  cannot  be  in  denial  of  public  right. 

si  Pbopbiety. — United  States  v.  Pugh,  99  U.  S.  269;  Hahn  v.  United 
States,  107  U.  S.  406;  Minneapolis,  etc.,  R.  R.  v.  United  States.  24  Ct. 
of  CI.  351;  Hilburn  v.  St.  Paul,  etc.,  R.  R..  23  Mont.  L'4.r.:  Lockwood  v. 
Bank,  9  R.  I.  308. 

(303 


CHAPTER  XII. 

THE  REGULATION  OF  THE  ADMINISTRATION. 


104. 

Introduction. 

105. 

Conflict  with  Legislation. 

106. 

Repugnancy. 

L07. 

Limitation. 

108. 

Conflict   with   Administration. 

109. 

Characteristic. 

110. 

Situation. 

111. 

Conclusion. 

§  104.     Introduction. 

A  regulation  is  an  order,  in  that  it  is  like  any  act  done 
in  administration.  Wherever  a  superior  gives  an  order 
to  the  inferior,  the  simplest  form  in  administration  is 
seen — the  specific  order.  Whenever  a  superior  with 
two  inferiors  gives  to  each  the  same  order,  the  simplest 
form  of  the  regulation  is  seen,  the  general  order.  After 
that,  between  a  general  order  spoken  for  two  and  the 
general  order  printed  for  two  thousand  no  distinction  ex- 
ists. The  power  to  issue  a  regulation  over  all  the  officers 
in  an  office  is  a  consequence  of  the  power  to  issue  any 
single  order  to  any  single  officer.  All  this  results  from 
the  theory  of  administration  which  gives  the  superior 
full  direction  over  his  inferiors  in  any  way  that  may 
seem  to  him  fit. 

This  is  indeed  the  liue  of  reasoning  in  the  case  called 
Furloughs,  21  Opin.  318  (1896).  This  was  a  request  by 
the  Secretary  of  the  Interior  upon  the  Attorney-General 
for  an  opinion  upon  this  question  as  the  furloughing  of 
(304) 


Ch.    U]  ITS  REGULATION.  £   1   4 

microscopists:  Whether  it  is  necessary  for  me  to  give  a 
notice  of  furlough  over  my  official  signature  in  each  in- 
dividual case,  or  will  a  general  order  signed  by  me  di- 
recting inspectors  in  charge  of  assistant  microscopists  to 
furlough  them  without  pay  when  their  services  are  not 
required  be  sufficient?  It  would  be  almost  impossible 
for  me  to  give  individual  furloughs  in  each  case. 

Harmon,  the  Attorney-General,  wrote  in  reply  :  Your 
right  to  furlough  cannot  be  questioned.  Inasmuch  as  the 
contingencies  upon  which  it  is  desirable  to  furlough 
microscopists  arise  from  time  to  time  and  upon  condi- 
tions which  you  cannot  foresee  or  control,  the  advan- 
tages to  the  government  of  this  system  would  largely  be 
sacrificed  if  you  are  compelled  to  act  personally  in  each 
individual  case,  and  after  the  occasion  has  arisen,  I  am 
of  opinion  that  you  can  make  general  regulations  under 
which  your  subordinates  in  charge  of  particular  locali- 
ties can,  as  circumstances  call  for  such  action,  furlough 
microscopists  to  take  effect  at  once,  reporting  their  ac- 
tion to  you. 

The  true  office  of  the  regulation  is  to  bring  method 
into  the  administration — to  have  a  system  in  adminis- 
tration that  shall  be  uniform  in  its  application.  It  is 
therefore  the  duty  of  the  inferior  to  obey  in  all  cases  the 
regulations  of  the  superior;  for  this,  indeed,  is  no  more 
than  the  usual  law  governing  in  all  administration. 
The  inferior  must  obey  his  superior;  the  application  of 
that  rule  in  this  particular  case  is  that  no  inferior  can 
waive  a  regulation  made  by  a  superior.  To  the  extent  to 
which  discretion  lias  been  left  to  an  inferior  he  may  act; 
inside  of  the  regulation,  that  is,  not  outside.  And  if 
discretion  is  left  him,  and  it  pleases  him  to  enact,  he  may 

(305) 

Adm.  Law— 20. 


§    105  ADMINISTRATIVE    LAW.  [Ch.   12 

promulgate  minor  rules  of  his  own  to  govern  the  action 
of  his  subordinates.  All  this  is  a  restatement  of  the 
law  found  in  the  discussion  of  the  theory  of  the  admin- 
istration. 

§  105.     Conflict  with  legislation. 

The  original  source  of  regulations  is  then  the  admin- 
istration itself.  It  must  be  possible,  therefore,  to  state 
the  law  governing  regulation  in  the  terms  of  the  law 
governing  administration,  when  the  matter  is  reduced 
to  its  lowest.  And  so  it  is;  a  regulation  is  no  different 
from  any  act  in  administration  at  bottom.  It  must  be 
possible,  moreover,  to  apply  one  law  governing  admin- 
istration to  the  regulation  in  essentials  when  matters 
come  to  decision.  And  so  it  is;  the  regulation  is  no  dif- 
ferent in  nature  from  any  action  in  administration  at 
bottom.  All  this  must  be  so,  if  the  proposition  is  ac- 
cepted to  its  full  extent  that  regulation  is  no  more  than 
one  Riethod  in  administration.  That  is  the  conclusion 
in  this  paragraph — that  regulation  is  administration  in 
substance.  If,  then,  the  regulation  is  an  act  of  adminis- 
tration, it  must  not  be  in  conflict  with  the  law. 

One  case  for  that  is  Hoyt  v.  Sullivan,  2  Land  Dec.  283 
(1883).  It  appears  that  Luther  B.  Sanborn  entered  the 
above  described  tract  under  the  timber-culture  laws  Oc- 
tober 28,  1880,  and  that  October  28,  1881,  Sullivan  initi- 
ated a  contest  against  said  entry  on  the  ground  of  aban- 
donment. Pending  Sullivan's  appeal  from  the  decision 
of  the  local  office  dismissing  his  first  contest,  November 
17,  1882,  Sanborn  tiled  a  relinquishment  of  his  timber- 
culture  entry,  Eowe  withdrew  his  contest,  and  Melvin 
A.  Hoyt  made  timber-culture  entry  for  the  same  land. 
(30G) 


Ch.    12]  ITS  REGULATION.  §    H15 

Secretary  Teller  ruled:  Utile  53  of  the  Rules  of 
Practice  prescribed  by  your  office  and  this  Department 
provides,  that  after  the  papers  in  an  appeal  have  been 
scut  up  by  the  local  office,  such  office  will  thereafter  take 
no  further  action  affecting  the  disposal  of  the  land  in 
contest  until  instructed  by  the  Commissioner.  The  rea- 
son for  the  adoption  of  this  rule  is  obvious.  In  the  ab- 
sence of  such  a  provision,  a  multiplicity  of  suits  would 
frequently  arise  involving  practically  the  same  ques- 
tion, and  thus  encumber  and  obscure  the  record  to  no 
good  purpose.  But  no  rule  formulated  for  the  adminis- 
tration of  the  law  will  be  permitted  in  its  operation  to 
defeat  a  statutory  right.  At  the  time  that  Hoyt  applied 
to  enter  the  land  it  was  open  to  such  entry.  The  orig- 
inal claimant,  Sanborn,  having  forfeited  his  rights  and 
relinquished  his  entry,  the  local  office  properly  allowed 
Hoyt's  application,  subjecl  to  outstanding  rights  of  oth- 
er parties.  The  illegal  contest  of  Sullivan,  then  pend- 
ing, could  not  deprive  Hoyt  of  his  statutory  right  to  en- 
ter the  land  nor  operate  to  remove  the  land  from  a  prop* 
er  disposition  by  the  district  officers.  You  are  not  at 
all  bound  by  your  rule  of  practice  therefore. 

A  case  explicit  to  the  point  that  the  usage  must  not 
extend  the  law,  as  a  regulation  musl  not,  is  Ogden  v. 
Maxwell,  3  Blatchf.  320  (1855).  This  was  an  action 
againsi  the  collector  of  New  York  to  recover  hack  money 
paid  under  the  following  circumstances:  The  plaintiff, 
owner  of  the  ship  Racer,  had  paid  for  \~>\  permits,  being 
one  permit  for  every  20  passengers.  This  was  proved 
to  have  been  the  uniform  practice  at  the  port  of  New 
York.  The  statute  only  provided  for  one  fee  for  one  per- 
mit and  one  permit  for  one  entry. 

•(307) 


g    106  ADMINISTRATIVE    LAW.  [Ch.    12 

On  this  Mr.  Justice  Betts  said :  The  statute  gives  no 
reward  except  for  doing  the  individual  act  named;  and 
no  consideration  of  convenience  to  either  or  both  parties, 
or  saving  of  expense  by  substituting  another  practice  in 
place  of  that  directed  by  law,  will  authorize  a  collector 
colore  officii  to  charge  and  receive  compensation  for  a 
service  differing  from  that  appointed  by  positive  law. 
The  custom  or  usage  alleged  to  prevail  at  this  port  to 
make  constructive  charges  for  granting  permits,  what- 
ever may  be  its  notoriety  or  continuance,  is  void,  both 
because  it  contravenes  the  construction  of  the  statute, 
and  also  because  there  is  no  warrant  of  law  except  un- 
der the  statute,  for  imposing  any  charge  or  fee  for  that 
official  act.  The  defendant  would  without  aid  of  the 
statute,  be  guilty  of  extortion  in  levying  fees  of  any  kind 
for  his  official  services.82 

§  106.     Repugnancy. 

An  example  of  that  evident  case  is  Stone  v.  Greaves, 
1880  Pat.  Dec.  23  (1879).  Priority  of  invention  was 
awarded  to  Graves  by  the  Examiner  of  Interferences  and 
on  appeal  by  the  Examiners-in-Chief.  Afterward  at  the 
request  of  the  Primary  Examiner  the  interference  was 
suspended  and  the  applications  remanded.  Upon  con- 
sideration thereof,  the  Primary  Examiner  rejected  the 
application  of  Stone  and  the  reissue  application  of 
Graves.  Stone  now  moved  that  the  interference  be  dis- 
solved upon  the  ground  that  the  invention  was  not  pat- 

82  Conflict  with  Legislation. — Navy  Regulations,  6  Opin.  10;  Man- 
ning's Case,  6  Lawrence  13;   Real  Estate,  3  Int.  Rev.  Rec.  37;   Hat- 
field, 17  Land  Dec.  79;    Stone  v.  Greaves,  1880  Pat.  Dec.  23;    East- 
ridge,  8  Pen.  Dec.  5. 
(308^1 


(Jh.   12J  ITS  REGULATION'.  §   106 

entable.  This  motion  involved  a  clash  between  the  stat- 
ute and  the  regulation. 

Paine,  the  Commissioner,  ruled :  On  one  side  of  the 
question  stands  the  rule  authorizing  the  dissolution  of 
an  interference  for  want  of  patentability  of  the  claim. 
On  the  other  side  stands  the  statute  conferring  upon  the 
applicant  the  right  of  appeal.  It  is  necessary  to  avoid, 
if  possible,  both  Scylla  and  Charybdis ;  but  it  is  neces- 
sary, in  any  event,  to  avoid  a  violation  of  the  statute. 
If  possible  that  course  is  to  be  taken  which  will  harmon- 
ize the  statute  and  the  rule  and  give  effect  to  both.  If 
that  is  impossible  the  rule  must  be  sacrificed  to  the  law, 
in  every  case. 

To  the  same  effect,  not  quite  so  obvious,  is  Bennett, 
7  Pen.  Dec.  1  (1893).  Charles  T.  Bennett,  late  private, 
Company  F.,  Thirteenth  Indiana  Volunteers,  filed  his 
original  application  for  an  invalid  pension  under  the 
provisions  of  the  Revised  Statute's,  on  July  5,  1886,  alleg- 
ing that  while  in  the  service  and  in  line  of  duty  at  Ra- 
leigh, N.  C,  about  June  1,  18G5,  he  was  prostrated  by 
sunstroke,  from  which  resulted  a  disease  of  the  head 
and  loss  of  hearing.  The  claim  was  rejected  by  the 
bureau  February  18,  1892,  upon  the  ground  that  the  evi- 
dence failed  to  establish  the  existence  of  any  disability 
due  to  the  claimant's  army  service.  The  applicant  was 
awarded  for  slight  deafness  not  of  service  origin  $12. 
The  award  was  made  under  the  act  of  1890.  It  was  giv- 
en by  the  bureau  for  "slight  deafness"  because  under  an 
entirely  different  act,  applicable  to  disabilities  of  service 
origin  alone,  $15  was  the  lowest  rating  for  slight  deaf- 
ness. The  inability  of  the  applicant  to  perform  manual 
labor  was  not  taken  into  consideration.     Yet  the  act  of 

(309) 


§   100  ADMINISTRATIVE    LAW.  r^h.   J2 

1890,  under  which  the  applicant  sought  and  was  allowed 
a  pension,  made  inability  of  the  applicant  to  perform 
manual  labor,  in  such  a  degree  as  to  prevent  him  from 
earning  a  support,  the  foundation  of  his  claim. 

The  Assistant  Secretary,  Reynolds,  ruled  adversely  to 
the  Commissioner  in  this  matter:  It  is,  therefore  clear 
that  the  rating  under  the  Revised  Statutes  for  disabili- 
ties of  service  origin  was  substituted  for  the  act  of  1890. 
The  order  having  resulted  in  one  error,  a  second  error 
naturally  followed,  and  the  inability  of  the  applicant  to 
perform  manual  labor  was  not  taken  into  consideration. 
In  a  word,  the  act  of  June  27,  1890,  was  changed  and  su- 
perseded by  Order  No.  164,  as  construed  by  your  Bureau, 
and  by  a  practice  that  neglected  to  take  into  considera- 
tion the  ability  of  the  applicant  to  perforin  manual  labor. 
It  is  hardly  necessary  to  present  argument  or  to  support 
by  authority  the  proposition  that  neither  the  Secretary 
nor  the  Commissioner  can  by  order  or  practice  supersede 
an  act  of  Congress.  The  power  of  the  department  so  far 
as  orders  are  concerned  is  limited  to  an  execution  of  the 
law;  it  ceases  when  an  effort  is  made  to  supersede  the 
law. 

Upon  the  whole  this  seems  too  plain  for  discussion, 
that  regulations  must  not  contravene  existing  law.  The 
position  of  the  regulation  of  the  statute  is  much  like  the 
position  of  the  statute  to  the  constitution — the  position 
of  an  inferior  law  to  a  superior  law.  And  as  a  new  con- 
stitutional provision  would  overrule  a  pre-existing  law 
inconsistent  with  it,  so  the  Legislature  by  its  express  en- 
actment would  overrule  any  regulation  upon  the  same 
subject  matter  which  had  been  promulgated  by  the  ad- 
ministration in  so  far  as  the  regulation  was  inconsistent 
(310) 


Cll.    12J  ITS  REGULATIOX.  §   107 

with  the  legislation.  But  in  any  case,  as  has  been  point- 
ed out,  just  as  no  statute  should  be  held  to  be  overruled 
by  a  constitution  unless  the  repugnancy  is  plain,  so  no 
regulation  should  be  held  to  be  inconsistent  with  the  stat- 
ute unless  the  repugnancy  is  plain  also.  It  is  only  by 
such  accommodation  that  government  can  go  on  without 
continual  irritation.83 

§  107.     Limitation. 

There  is  the  same  limitation  upon  the  usage  of  the  ad- 
ministration as  there  is  upon  the  regulation  of  the  ad- 
ministration— the  law.  A  usage  cannot  be  allowed  to 
contravene  the  law.  A  usage  cannot  be  allowed  to  con- 
tradict the  law,  any  more  than  a  regulation  can  be  al- 
lowed. Whatever  scope  there  is  for  usage  is  within  the 
law.  Since  the  office  of  the  usage  is  to  aid  in  adminis- 
tration, the  usage  cannot  by  the  hypothesis  go  further 
and  become  legislation.  The  same  limitation  is  upon 
the  usage  of  the  administration  as  is  upon  every  sepa- 
rate act  which  goes  to  make  up  the  usage. 

The  leading  case  is  United  States  v.  Mann,  2  Brock.  11 
(1882).  This  was  a  motion  by  a  marshal  of  the  United 
States  to  discharge  an  attachment  against  him  levied 
on  behalf  of  the  United  States  because,  as  he  said,  the 
United  States  was  indebted  to  him  in  a  larger  sum  for 
fees  due  to  him,  which  fees  the  Treasury  Department  re- 
fused to  pay.  The  refusal  of  the  Treasury  Department  it 
appears. was  based  upon  a  practice  in  that  departmenl 
that  the  officer  must  make  his  fees  out  of  the  execution. 

sa  Repugnancy. —Forest  Reservations,  22  Opin.  266;  Hoyt  v.  Sul- 
li/an,  2  Land  Dec.  283;  Stone  v.  Graves,  1880  Pat.  Dec.  23;  Bennett, 
7  Pen.  Dec.  1;  Re-enlistment  in  Navy,  6  Compt.  Dec.  589. 

(311) 


x    107  ADMINISTRATIVE    LAW.  [Ch.    12 

Otherwise  it  had  been  ruled  that  no  claim  of  his  in  that 
respect  would  be  allowed  by  the  accounting  officers. 

Upon  the  propriety  of  this  practice,  Chief  Justice 
Marshall,  then  upon  circuit,  held :  The  Treasury  De- 
partment may  certainly  have  its  own  rules  for  the  ad- 
justment of  such  claims,  and  these  rules  will,  if  reason- 
able, be  respected.  The  situation  of  the  officers  who 
claim,  will  in  general  secure  their  respect,  and  the 
desire  for  the  preservation  of  that  harmony  which 
ought  to  exist  between  the  departments,  will  secure  that 
of  the  court.  But  when  these  rules  go  to  a  total  denial 
of  justice,  to  an  absolute  refusal  to  allow  a  just  and  legal 
claim,  a  court  cannot,  if  it  has  jurisdiction  of  the  sub- 
ject, disregard  the  rights  of  the  party.  In  this  case  the 
officer  has  a  right  for  services  rendered. 

A  square  case  for  the  law  as  against  the  usage  is  Mer- 
ritt  v.  Cameron,  137  U.  S.  542  (1890).  This  is  an  action 
at  law  by  Cameron  &  Co.,  importers,  against  the  collect- 
or of  the  port  of  New  York  to  recover  duties  alleged  to 
have  been  illegally  exacted  on  a  cargo  of  sugar  and  mo- 
lasses. The  defense  of  the  collector  was  that  no  protest 
had  been  made  within  ten  days  from  the  ascertainment 
and  liquidation  of  the  duties,  as  was  required  by  the 
statute.  The  suit  turned  upon  a  determination  of  what 
constituted  ascertainment  and  liquidation.  The  stat- 
ute required  a  long  process  weighing  and  gauging,  in- 
spection and  appraisal,  fixing  and  assessing  dutiable 
value.  These  goods  were  put  in  a  warehouse  under  bond 
and  payment  was  made  at  a  later  time  to  get  the  goods 
out  of  bond.  What  was  the  time  of  ascertainment  and 
liquidation?  By  the  statute  it  would  be  the  placing  in 
bond,  it  would  seem ;  but  by  the  practice,  it  was  the  time 
of  taking  from  bond. 
(•312) 


Cn.    12j  ITS  REGULATION.  §    108 

The  Couit — Mr.  Justice  Lamar  speaking — held  to  the 
statute  over  the  regulation:  In  arriving  at  this  conclu- 
sion we  are  not  unmindful  of  the  fact  that  the  defend- 
ants in  error  made  their  protest  in  accordance  with  the 
regulations  of  the  Treasury  Department  in  force  at  that 
time.  A  regulation  of  a  department,  however,  cannot 
repeal  a  statute;  neither  is  a  construction  of  a  statute 
by  a  department  charged  with  its  execution  to  be  held 
conclusive  and  binding  upon  the  courts  of  the  country 
unless  such  construction  has  been  continuously  in  force 
for  a  long  time.  In  this  case  there  has  been  no  such 
long  and  uninterrupted  acquiescence  in  the  regulation 
by  a  department  or  departmental  construction  of  the 
statute,  as  will  bring  the  case  within  the  rule  announced 
at  an  early  day  in  this  court,  and  followed  in  very  many 
cases,  to-wit :  that  in  a  case  of  doubtful  and  ambiguous 
law  the  contemporaneous  construction  of  those  called 
upon  to  carry  it  into  effect  is  entitled  to  great  respect 
and  should  not  be  disregarded  without  the  most  cogent 
and  persuasive  reasons. 

As  this  problem  of  the  limitation  upon  usage  is  the 
same  as  the  problem  of  the  limitation  upon  regulation. 
there  need  be  no  discussion  of  these  cases,  since  there  has 
been  elaborate  discussion  of  these  matters  in  this  same 
chapter.  The  limitation  is  the  same — positive  law;  and 
the  reason  for  the  limitation  is  the  same — due  adminis- 
tration.84 

§  108.     Conflict  with  administration. 

There  remains  tliis  possibility,  which  must  often  arise: 
can  an  officer  dispense  with  his  own  regulations  which 

sl  Limitation. — Settlement  of  Accounts,  1!)  Opin.  177;  Furloughs, 
21  Opin.  318;  Bubb's  Case,  4  Compt.  Dec.  40;  Hoyt  v.  Sullivan,  2 
Land  Dec.  283;  Hook,  8  Pen.  Dec.  3G7. 

(313) 


§    108  ADMINISTRATIVE    LAW.  [Ch.    12 

would  otherwise  govern  in  any  particular  case?  If 
these  regulations  are  no  more  than  his  rules  for  admin- 
istration which  he  has  laid  down  for  his  own  guidance, 
he  may  take  counsel  with  himself  at  any  time,  and  issue 
a  new  set  of  regulations,  which  will  abrogate  the  old  set 
of  regulations.  And  if  he  can  do  that,  may  he  not  in 
any  particular  case  waive  his  regulations  for  that  par- 
ticular case?  This  will  be  the  consequence  if  these  regu- 
lations are,  after  all,  no  more  nor  less  than  his  own  meth- 
ods in  administration.  His  own  rules  may  bind  others ; 
can  it  be  that  his  own  rules  will  bind  him?  This  is  a 
test  question,  for  if  this  is  all  administration  within  his 
discretion,  he  may  in  his  discretion  do  what  he  will  in 
spite  of  his  regulations. 

This  is  the  test  question,  then  in  Bubb's  Case,  4  Conipt. 
Dec.  40  (1897).  The  Auditor  of  the  Interior  Depart- 
ment made  a  decision  July  26,  1897,  in  the  claim  of  John 
W.  Bubb  for  reimbursement  of  an  amount  refunded  by 
him  because  of  an  overpayment  to  Indians,  and  sub- 
mitted that  decision  to  the  Comptroller  for  his  approval, 
disapproval  or  modification.  The  Auditor  decided  that 
this  payment  would  be  a  diversion  of  the  annuity  funds 
not  sanctioned  by  the  treaty  or  express  provision  of  law, 
which  is  prohibited  by  section  2097,  Revised  Statutes, 
and  Indian  Regulations,  1894,  section  156. 

Assistant  Comptroller  Bowers  ruled:  So  far  as  the 
Indian  Regulations  have  any  bearing  on  this  case,  it  is 
sufficient  to  say  that  they  were  made  by  the  Secretary 
of  the  Interior,  and  he  has  authority  to  revoke  or  waive 
them  in  a  particular  case,  and  an  order  subsequently 
issued  by  him  in  contravention  of  a  regulation  must  be 
held  to  be  a  waiver  of  a  regulation  in  that  case.  The  de- 
(314) 


Ch.    l2]  ITS  REGULATION.  §    108 

cision  of  the  Auditor  is  accordingly  disapproved,  and  the 
claim  may  be  allowed. 

And  further,  this  case  may  be  considered  in  this  con- 
nection: Settlement  of  Accounts,  19  Opin.  177  (1888). 
The  inquiry  was  whether  or  not  under  existing  practice 
the  accounts  of  the  officers  of  courts,  United  States  at- 
torneys, etc.,  can  be  settled  through  one  bureau  of  the 
Treasury  Department  or  not,  and  "whether  the  Secre- 
tary of  the  Treasury  has  authority  under  the  statutes,  by 
departmental  order  or  regulations,  to  change  the  exist- 
ing practice  in  this  department  with  regard  to  the  set- 
tlement of  certain  accounts."  The  First  Auditor  of  the 
Treasury  details  the  existing  practice  and  recommends 
a  change. 

The  Attorney-General,  Garland,  ruled:  The  First 
Auditor  says  that  the  change  proposed  can  mostly  be 
reached  by  departmental  action.  A  change  of  statute 
can  not  be  made  by  any  departmental  regulation.  How- 
ever "illogical"  the  practice  under  the  laws  may  be,  the 
laws  authorize  and  enjoin  such  practice,  and  a  deviation 
from  a  practice  thus  established  cannot  be  justified  un- 
der the  decisions  of  the  Supreme  Court  of  the  United 
States,  which  sustain  the  doctrine  that  a  contempora- 
neous and  uniform  interpretation  by  executive  officers, 
charged  with  a  duty  acting  under  a  statute,  is  entitled  to 
great  weight,  and  ought  not  to  be  overturned,  particu- 
larly in  cases  that  have  been  settled  by  construction,  by 
precedent,  by  continuous  practice,  and  the  decision  of 
the  court.  I  am  of  the  opinion,  therefore,  that  so  far  as 
the  contemplated  changes  are  inconsistent  with  existing 
law,  the  Secretary  of  the  Treasury  cannot  legally  by  a 

(315) 


§    109  ADMINISTRATIVE    LAW.  [Ch.  12 

departmental  order  change  a  practice  or  a  course  pre- 
scribed by  practice.85 

§  109.     Characteristic. 

At  the  same  time,  if  the  regulation  is  valid  and  the  ac- 
tion of  the  officer  is  outside  of  the  regulation,  that  action 
is  void  unless  confirmed  by  his  superior,  for  that  is  ac- 
tion beyond  his  powers  by  the  hypothesis.  A  case  in 
point  is  the  Militia  Bureau,  10  Opin.  11  (1861).  This 
was  an  inquiry  as  to  the  power  to  make  an  order  to  es- 
tablish a  militia  bureau  and  to  constitute  a  certain 
Lieutenant  Ellsworth  for  special  duty,  with  special  pay, 
as  chief  of  the  bureau.  There  was  no  statute  law  to  au- 
thorize it  and  the  regulations  of  the  army  were  opposed 
to  such  a  change.  The  question  was  whether  the  Secre- 
tary of  War  could  issue  an  order  to  make  the  change. 

Attorney- General  Bates  said  in  part:  The  appoint- 
ment of  Lieutenant  Ellsworth  as  Chief  of  the  proposed 
bureau  is  forbidden  by  Article  7  of  the  Regulations  of 
the  Army,  which  provides  that  no  officer  shall  fill  any  po- 
sition, the  duties  of  which  will  detach  him  from  his  regi- 
ment or  corps  until  he  has  served  three  years  in  his  regi- 
ment or  corps;  and  further,  that  no  officer  of  a  mounted 
corps  shall  be  separated  from  his  regiment  except  for 
duty  connected  with  his  particular  army.  These  regula- 
tions stand  in  the  way  of  the  appointment  of  this  par- 
ticular officer,  and  although  they  may  not  have  the 
authority  of  law,  it  is  yet  quite  obvious  that  until  abol- 
ished, no  sound  principle  would  justify  this  violation. 

To  the  same  effect  is  United  States  v.  Symonds,  120 

83  Conflict  with  Administration. — Militia  Bureau,  10  Opin.  11; 
Interstate  Commerce  Commission,  4  Compt.  Dec.  266;  Crawford,  7 
Pen.  Dec.  357;  Gilbert,  Bowler  213;  Lost  Bond  Case,  5  Lawrence  197. 

(316) 


Ch.    12]  ITS  REGULATION.  §    11(, 

U.  S.  46  (1887).  The  question  in  this  ease  was  wheth- 
er certain  services  of  the  appellee,  a  lieutenant  in  the 
navy,  were  performed  "at  sea''  within  the  meaning  of 
the  Revised  Statutes.  The  Xavy  Department  issued  or- 
ders making  one  period  sea  service,  the  other  period 
shore  service.  Whether  the  regulation  must  not  gov- 
ern all  cases  was  the  final  point  made  for  the  appellant. 
Mr.  Justice  Harlan  held  for  the  lieutenant:  The 
Secretary  of  the  Navy  could  fix  by  ordering  conclusively 
what  was  and  what  was  not  sea  service.  The  authority 
of  the  Secretary  to  issue  orders,  regulations  and  instruc- 
tions with  the  approval  of  the  President  in  reference  to 
matters  connected  with  the  navy,  would  be  subject  to  the 
condition  necessarily  implied,  that  they  must  be  con- 
sistent with  the  statutes  which  have  been  enacted  by 
Congress  in  reference  to  the  navy.  He  may,  with  the 
approval  of  the  President,  establish  regulations  in  exe- 
cution of  or  supplementary  to,  but  not  in  conflict  with 
statutes  defining  his  powers  or  conferring  rights  upon 
others.  This  has  been  the  consistent  doctrine  of  the 
court.  In  no  case  has  it  been  upheld  that  the  regula- 
tions when  in  conflict  with  Acts  of  Congress  could  be 
upheld.86 

§  110.     Situation. 

The  argument  is  indeed  an  elementary  one.  The  pow- 
er to  execute  the  law  involves  a  power  to  make  regula- 
tions of  general  application  for  the  reasonable  conduct 
of  administration.  It  involves  that  power  because  to 
prescribe  such  regulations  is  no  more  than  a  right  in 

se  Chauacji:risi  i< . — Coast  Survey,  2  Comn.  Dec.  306;  Lost  Bond 
Case,  5  Lawrence  197;  Hoyt  v.  Sullivan,  2  Land  Dec.  283;  Hawkins, 
8  Pen.  Dec.  22;  Real  Estate,  3  Int.  Rev.  Rec.  37. 

(317) 


§    101  ADMINISTRATIVE    LAW.  [Ch.    12 

administration  to  use  such  methods  as  may  seem  fit  to 
be  used.  It  is  a  little  stronger  than  that;  indeed  the 
proper  conduct  of  a  wide  administration  requires  the  es- 
tablishment of  regular  forms  and  modes  for  the  usual 
case  if  there  is  to  be  success.  But  the  unusual  case 
shows  that  this  is  administration  after  all  is  done,  for  in 
such  a  case  the  regulation  may  be.  waived  by  the  officer 
that  made  it  in  any  case  that  seems  to  him  fit.  This  is 
the  secret  of  administration — usual  methods  for  the  ordi- 
nary case,  unusual  methods  for  the  extraordinary  case. 
That  is  always  in  the  reserve — discretion. 

An  important  case  upon  the  nature  of  the  regulation 
is  One  v.  Barstow,  175  Mass.  193  (1900).  This  was 
a  petition  to  enforce  a  mechanic's  lien.  At  the  trial  the 
copy  of  the  statement  put  in  evidence  by  the  petitioners 
bore  the  endorsement,  Filed  Feb.  14,  1898,  at  8  h.  o.  m. 
A.  M.  It  was  agreed  that  this  was  not  within  the  thirty 
days  allowed  for  filing  by  the  statute;  but  evidence  was 
admitted  which  showed  the  following  facts:  The  office 
hours  of  the  registry  on  Saturdays  were  from  S  A.  M. 
to  1  P.  M.  Ou  Saturday,  Feb.  12,  1898,  which  was  with- 
in the  thirty  days,  ltd  ween  1  P.  M.  and  2  P.  M.,  the  at- 
torney for  the  petitioner,  having  got  into  the  office  after 
it  was  closed,  tendered  the  statement  and  the  fee  to  the 
register  of  deeds,  who  was  there,  but  who  refused  to  re- 
ceive it.  By  the  Public  Statutes  the  register  was  re- 
quired to  note  the  reception  of  every  paper  filed  and  to 
certify  to  it. 

Mr.  Justice  Holmes  said :  We  are  of  opinion  on  the 
facts  proved,  the  statement  was  filed  on  Saturday  after- 
noon. We  shall  go  no  further  in  our  decision  than  this 
case  requires.  We  shall  not  undertake  to  decide  wheth- 
(318) 


Cll.    12]  ITS  REGULATION.  ^    ni 

er  the  register  had  a  right  to  close  his  office  as  early  as 
he  did,  so  far  as  to  exonerate  himself  from  liability  had 
some  one  come  to  the  office  and  found  it  empty.  But 
he  was  there.  He  undertook  to  refuse  to  give  legal  ef- 
fect to  the  deposit,  it  is  true,  but  in  our  opinion  that  was 
beyond  his  power.  It  was  the  petitioners'  right,  if  they 
found  the  register  in  his  office,  to  insist  on  their  state- 
ment being  filed  forthwith,  and  it  is  no  answer  to  say? 
that  the  register  might  have  been  absent  without  liability 
under  the  law.  As  the  petitioners  did  all  that  they  could, 
or  were  bound  to  do,  the  register's  conduct  did  not  af- 
fect their  rights. 

3  111.     Conclusion. 

All  these  regulations  therefore  have  the  same  validity. 
In  the  formulation  of  the  law  upon  this  subject  there  has 
been  much  hesitation.  An  examination  of  the  various 
decisions  results  in  some  uncertainty.  When  a  statute 
is  enacted,  either  there  is  specific  indication  in  much 
detail  for  its  execution,  or  there  is  express  delegation 
to  the  executive  to  make  regulation,  or  there  is  in  con- 
templation in  the  act  a  subsequent  ratification  of  the 
regulations  which  shall  be  framed,  or  there  is  no  pro- 
vision whatever  touching  the  methods  for  its  adminis- 
tration.  The  truth  of  the  matter  seems  to  be  that  in 
all  these  four  cases  the  executive  promulgates  such  reg- 
ulations as  seem  to  it  fit  with  entire  equanimity. 

(319) 


CHAPTER  XIII. 

THE   ADJUDICATION   OF   THE   ADMINISTRATION. 


112. 

Introduction. 

113. 

Jurisdiction  in  Adjudication. 

114. 

Exclusive. 

115. 

Final. 

116. 

Adjudication  in  Controversies, 

117. 

Concurrent. 

118. 

Alternative. 

119. 

Conclusion. 

§  112.     Introduction. 

There  are  these  three  methods  in  administration,  then  : 
execution,  legislation,  and  adjudication.  This  is  their 
order  in  importance,  their  order  in  value,  their  order 
in  time.  ]So  administration  is  fully  formed  unless  it 
has  within  its  power  the  exercise  of  each  of  these  func- 
tions, each  at  the  appropriate  time.  In  all  but  one  case 
in  ten  thousand  the  citizen  obeys  the  direction  of  the 
administration  in  the  course  of  its  execution  without 
question;  in  all  but  one  of  these  cases  out  of  ten  thou- 
sand in  turn,  the  citizen  accepts  the  interpretation  of 
the  administration  by  its  legislation;  and,  the  last 
step,  in  all  but  one  out  of  ten  thousand  cases,  the  citi- 
zen accepts  the  adjudication  of  the  administration  upon 
his  contest  without  further  action.  In  computation  ad- 
ministration by  adjudication  is  one  case  in  millions. 

Notice  that  this  is  all  administration  from  beginning 
to  end.  Administration  by  adjudication  is  no  more  than 
(320) 


Uh.    13J  ITS  ADJUDICATION.  .     £    113 

the  determination  by  the  administration  of  the  contro- 
versies that  arise  out  of  the  action  of  the  administra- 
tion. This  jurisdiction  of  the  administration  is  new  in 
countries  where  the  common  law  system  prevails,  but 
it  is  old  iu  countries  where  the  civil  law  system  prevails. 
Indeed,  so  new  is  this  function  in  the  administration  to 
try  its  own  controversies  that  no  discussion  of  it  is  to 
be  found  in  our  law  writers.  It  is  still  the  doctrine  that 
all  controversies  must  he  decided  in  the  judicial  courts; 
which  must  be  so,  it  is  said,  because  the  theory  of  the 
law  of  the  land  involves  supremacy  of  the  ordinary  ju- 
dicial tribunals.  In  the  face  of  such  theories,  the  juris- 
diction of  the  administration  to  determine  its  own  con- 
troversies has  been  established  to  an  extent  not  often 
appreciated. 

?  113.     Jurisdiction  for  adjudication. 

The  first  question  that  arises  in  the  discussion  of  ad- 
judication by  the  administration  is  whether  it  is  possi- 
ble under  our  constitutional  system  that  such  power  can 
be  given  to  the  executive  department.  The  leading  case 
to  establish  that  is  Gary  v.  Curtis,  3  How.  236  (1845). 
A  certificate  of  division  of  opinion  was  sent,  by  the  judges 
of  the  circuit  court  upon  the  question  whether  the  act 
of  L839  was  a  bar  to  an  action  against  a  collector  of 
customs  for  money  illegally  exacted  by  him  as  duties 
paid  under  protest,  the  collector  having  paid  for  them 
into  the  Treasury.  The  Act  of  1831)  provides  that  all 
money  paid  to  any  collector  of  customs  under  protest 
shall  be  placed  to  the  credit  of  the  Treasury  of  the  United 
States  and  disposed  of  as  all  other  money  paid  for  duties, 
as  required  by  law  or  by  regulations  of  the  Treasury  l><' 

(321) 
Adm.  Law — 21 . 


§113  ADMINISTRATIVE    LAW.  [(;n.    13 

partment.  But  whenever  it  shall  be  shown  to  the  sat- 
isfaction of  the  Secretary  of  the  Treasury  that  in  any 
case  of  ascertained  duties,  more  money  has  been  paid 
to  the  collector,  or  to  the  person  acting  as  such,  than 
the  law  requires,  it  shall  be  his  duty  to  direct  the  said 
Treasurer  to  refund  the  same.  The  question  then  went 
to  an  inquiry  into  the  constitutionality  of  this  statute; 
which  by  its  terms  provided  that  the  decision  was  left 
to  the  administration. 

The  opinion  of  Mr.  Justice  Daniel  is  an  excellent 
statement  of  the  situation:  The  plain  intent  of  this 
statute  is  that  if  the  money  has  been  placed  to  the  credit 
of  the  Treasury,  that  it  is  the  Secretary  of  the  Treasury 
alone  by  whom  the  rights  of  the  government  and  of  the 
claimant  are  to  be  decided;  and  whoever  shall  pay  to 
the  collector  any  money  must  do  so  subject  to  the  con- 
sequences. Uniformity  of  impostsand  excises  isrequired 
by  the  Constitution.  Regularity  and  certainty  of  the 
payment  of  revenues  must  be  admitted  by  every  one  as 
of  primary  importance.  Within  the  extended  limits  of 
lliis  country  are  numerous  districts.  Many  officers  must 
be  entrusted  with  the  collection  of  revenue,  and  with 
the  payments  by  the  government.  To  permit  the  receipts 
on  the  customs  to  depend  on  constructions  as  numerous 
as  those  who  might  be  interested,  or  to  require  that  those 
receipts  shall  await  a  settlement  of  every  dispute  or 
objection  that  might  spring  from  so  many  conflicting 
views,  would  greatly  disturb,  if  not  prevent,  the  uni- 
formity required  bv  the  Constitution.  The  money  shall 
be  placed  in  the  possession  of  the  Treasury  to  await  de- 
cision instead  of  in  the  hands  of  collectors. 

These  measures  are  taken  expressly  to  secure  uniform- 
(322) 


Ch.    13]  ITS  ADJUDICATION.  s    113 

ity  of  decision  and  practice  in  relation  to  the  amount  of 
duties  imposed  by  law.  In  devising  a  scheme  for  im- 
posing and  collecting  the  public  revenue  it  is  competent 
for  Congress  to  designate  the  officer  of  the  United  States 
in  whom  the  rights  of  that  government  should  be  repre- 
sented, and  to  prescribe  the  manner  and  trial.  There 
is  nothing  arbitrary  in  such  an  arrangement;  they  are 
general  in  their  character;  they  are  the  results  of  prin- 
ciples inherent  in  the  government ;  they  are  defined  and 
promulgated  as  public  law.  The  courts  of  the  United 
States  can  take  no  cognizance  of  matters  that  are  not 
assigned  them  by  law,  or  conversely.  The}7  can  take  no 
cognizance  of  matters  that  by  law  are  either  denied  to 
them  or  expressly  referred  ad  aliud  examen. 

This  decision  goes  to  the  extent  of  allowing  that 
the  jurisdiction  of  the  administration  may  be  exclusive. 
That  covers  the  whole  situation  if  they  may  be  exclusive; 
it  is  plain  that  they  may  be  concurrent.  Again,  those 
decisions  go  to  the  extent  of  regarding  the  decision  of 
the  administration  as  final.  That  again  covers  the  whole 
situation.  And  this  is  upon  a  plain  ground  that  this 
is  all  administration  from  first  to  last.  It  is  all  based 
upon  the  independence  of  the  administration. 

Another  plain  case,  People  v.  Dental  Examiners, 
110  111.  180  (1884).  The  statute  at  that  time  provided 
that  the  State  Board  of  Dental  Examiners  should  issue 
a  license  to  any  regular  graduate  (if  every  reputable  den- 
tal college.  The  petitioner  stated  that  he  was  a  gradu- 
ate of  an  Indiana  Dental  College.  In  his  petition  be 
states  elaborately  the  course  of  instruction  in  that  insti- 
tution. Wherefore,  being  without  other  legal  remedy,  the 
petitioner  prayed  a  writ  of  mandamus  to  the  Board  <»f 

(323) 


§    113  ADMINISTRATIVE    LAW.  [Ch.    13 

I  >ental  Examiners  to  compel  them  to  issue  him  a  license, 
which  he  claimed  was  withheld  by  them  contrary  to  law. 
It  all  depended  upon  whether  the  ruling  of  the  board 
that  the  institution  was  not  reputable  in  their  view 
should  stand. 

This  is  the  same  issue  as  before, — whether  this  is  with- 
in the  discretion  of  the  board;  and  the  COURT  says  again 
that  it  is:  These  questions  are  by  the  act  submitted  to 
the  decision  of  the  State  Board  of  Dental  Examiners. 
Their  action  is  to  be  predicated  upon  the  requisite  facts, 
and  no  other  tribunal  is  authorized  to  investigate  them. 
The  act  of  ascertaining  and  determining  what  are  the 
facts  is  iu  its  nature  judicial,  involving  investigation, 
judgment,  and  discretion.  So  upon  this  refusal  of  the 
Illinois  State  Board  of  Dental  Examiners  to  grant  a 
license  to  a  person  whose  application  was  based  upon 
a  diploma  issued  by  a  dental  college,  mandamus  will 
not  issue  to  compel  the  board  to  grant  the  license,  be- 
cause to  entitle  the  applicant  to  a  license,  the  diploma 
must  have  been  issued  by  a  ''reputable"  dental  college, 
and  whether  the  college  is  a  ''reputable''  one  is,  under 
the  statute,  within  the  judgment  and  discretion  of  the 
board  to  determine.  In  accordance  with  this  decision 
are  all  cases  similar  to  it;  for  the  principle  is  un- 
doubted.87 

*7  Jurisdiction  ix  Adjudication. — Giciley  v.  Palmerston,  3  Brod. 
&  B.  275;  In  re  Boyes,  13  Ont.  3;  Cary  v.  Curtis,  3  How.  236;  Bart- 
lett  v.  Kane,  16  How.  272;  Murray's  Lessee  v.  Hoboken  L.  &  I.  Land 
Co.,  18  How,  272;  Carrick  v.  Lamar,  116  U.  S.  426;  Noble  v.  Logging 
R.  R.,  147  U.  S.  165;  United  States  v.  Lamont,  155  U.  S.  308;  Ex  parte 
Selma  R.  R.,  46  Ala.  423;  Lee  v.  Huff,  61  Ark.  494:  Downer  v.  Lent. 
6  Cal.  94;  Raymond  v.  Fish.  51  Conn.  80;  United  States  v.  Douglass. 
19  D.  C.  99;  Pensacola  R.  R.  v.  State,  25  Fla.  Ml";   State  v.  Thrasher. 

(324) 


Ch.    13]  ITS  ADJUDICATION.  §114 

^  114.     Exclusive. 

The  case  of  Dugan  v.  United  States,  o4  Ct  of  01.  458 
(1899),  shows  that  this  has  the  positive  side.  This  was 
a  decision  by  the  Commissioner  of  Internal  Kevenue  un- 
der K.  S.  sect.  3426,  upon  satisfactory  evidence  of  the 
fact  that  the  post  exchanges  or  canteens  were  not  sub- 
ject to  the  internal  tax  upon  liquor  dealers  as  they  were 
in  fact  governmental  agencies.  The  Commissioner,  act- 
ing upon  the  statute,  thereupon  made  an  allowance  by 
his  certificate  for  a  refunding.  The  question  was  wheth- 
er this  award  was  final  upon  the  government. 

The  opinion  of  Peele  is  in  substance:  The  Commis- 
sioner's functions  with  respect  to  the  matter  referred  to 
under  the  statute  are  judicial  in  their  nature;  and  his 
action  concludes  a  claimant  from  taking  to  the  courts 
for  investigation  the  things  designed  to  be  finally  settled 
by  him.  Whatever  rights  the  claimants  had  rested  upon 
the  statute,  which  left  to  the  revenue  officer  to  determine 
whether  the  special  rax  was  wrongfully  collected  and 
for  that  reason  should  be  refunded.  The  Commissioner 
had  jurisdiction  in  the  matter,  and  his  allowances  or 
awards  for  the  refund  of  the  taxes  so  paid,  being  unim- 

Y7  Ga.  671;  People  v.  Dental  Examiners,  110  111.  180;  Spitznogle  v. 
Ward,  64  Ind.  30;  Chamberlain  v.  Clayton,  56  Iowa.  331;  Gilmore  v. 
Hentig,  33  Kan.  170;  Construction  Co.  v.  Police  Jury,  44  La.  Ann. 
863;  Donahoe  v.  Richards,  38  Me.  379;  Ulman  v.  Baltimore.  72  Md. 
592;  Miller  v.  Horton,  152  Mass.  540;  Highway  Commissioners  v.  Ely. 
54  Mich.  173;  State  v.  Chicago,  etc.,  R.  R.,  3S  .Minn.  281 ;  State  v.  Chi- 
cago, etc.,  R.  R.,  29  Neb.  412;  Edes  v.  Boardman,  58  N.  H.  580;  Wil- 
liams v.  Weaver,  75  N.  Y.  30;  Board  of  Education  v.  Bladen 
Com'rs,  113  N.  C.  379;  Thomas  v.  Wilton.  40  Oh.  St.  516;  Burton  v. 
Fulton,  49  Pa.  St.  151;  Keenan  v.  Perry,  24  Tex.  260;  Burtlett  v.  Al- 
len, 35  W.  Va.  354. 

(325) 


§    U4  ADMINISTRATIVE    LAW.  [£h.    13 

peached,  must  stand.  Judgment  will  be  entered  in  his 
favor  for  both  awards. 

How  final  the  decision  of  an  officer  of  the  administra- 
tion may  be  is  shown  in  the  ruling  cases  concerning 
grants  by  a  government.  United  States  v.  The  Com- 
missioner, 5  Wall.  563  (1866).  The  case  in  that  court 
arose  on  a  petition  by  McConnell  for  a  mandamus  to 
command  the  Commissioner  to  issue  a  land  patent  to 
him.  The  relator  held  a  certificate,  but  the  Commis- 
sioner had  refused  to  grant  him  a  patent.  What  rea- 
sons influenced  the  Commissioner  in  this  refusal  did  not 
appear.     The  court  refused  to  go  into  the  question  at  all. 

The  court  disposed  of  this  mandamus  in  a  very  sum- 
mary manner.  Nelson  said :  Where  the  merit  of  the 
several  objections  and  questions  made  in  this  case  lie 
we  do  not  undertake  to  determine,  nor  can  they  be  de- 
termined understand;  ngly  upon  this  record.  Many  of 
the  acts  of  the  parties,  and  of  the  officer,  the  registers 
and  the  commissioners  of  the  land  office  may  be  valid 
or  void.  We  have  referred  to  them  for  the  purpose  of 
showing  that  this  case  is  not  one  to  which  the  remedy 
by  mandamus  can  be  applied.  It  calls  for  the  exercise 
of  the  judicial  functions  of  the  officer  and  those  of  no 
ordinary  character.  The  duty  is  not  merely  ministerial, 
but  involves  judgment  and  discretion,  which  cannot  be 
controlled  by  this  writ.  We  have  found  no  case  in  which 
this  power  has  been  exercised.  Patents  are  to  be  signed 
by  the  President  in  person  or  in  his  name  by  a  Secretary 
under  his  direction  and  countersigned  by  the  recorder 
of  the  general  land  office.  The  phrase  in  this  opinion 
(326) 


Oh.    J  3]  ITS  ADJUDICATION.  §    114 

that  is  worth  emphasis  is,  the  exercise  of  the  judicial 
functions  of  an  officer. 

To  what  extent  the  decisions  of  the  administration 
upon  contests  within  its  jurisdiction  are  final  is  the  first 
question.  This  depends  upon  one  fundamental  distinc- 
tion in  this  subject.  The  decision  of  the  administration 
may  either  be  preliminary  or  final.  Two  steps  may  be 
provided  for  or  one.  The  scheme  may  be  either  that 
the  claimant  must  first  apply  to  the  administration  for 
its  adjudication,  and  after  this  condition  precedent  may 
begin  over  again  in  the  judicial  courts  if  he  is  still 
aggrieved;  or  the  arrangement  may  be  that  the 
claimant  has  only  the  administration  as  the  tribunal 
to  try  his  case  against  the  government,  the  provision 
being  that  this  decision  of  the  administration  shall  be 
without  recourse  elsewhere.  In  either  case  it  is  to  be 
noted  there  is  adjudication  by  the  administration;  only 
in  the  first  case  there  is  another  examination  possible 
afterwards,  in  the  other  case  there  is  none.  An  admin- 
istration that  has  power  to  go  so  far  as  to  decide  the 
controversies  that  arise  out  of  its  own  action  is  most 
effective  in  its  action.  That  process  may  well  be  made 
a  preliminary  proceeding  in  all  cases.  An  appeal  to  a 
superior  from  any  inferior  it  is  well  to  provide  in  first 
instance;  indeed  this  is  part  of  the  normal  processes  of 
administration.  But  to  make  the  decision  of  the  ad- 
ministration final  will  give  a  power  to  the  administra- 
tion that  in  most  cases  will  be  apt  to  be  arbitrary  in  its 
exercise.  So  the  result  is  that  exclusive  jurisdiction  for 
the  administration  is  the  unusual  case  and  the  concur- 
rent jurisdiction  is  the  usual  case.     In  one  view  this  is 

(327) 


§115  ADMINISTRATIVE    LAW.  [Qh     13 

a  question  of  jurisdiction;  in  another  view  it  is  a  Ques- 
tion of  procedure.88 

§  115.     Final. 

Witliin  the  scope  of  its  jurisdiction  the  adjudication 
of  the  administration  is  final  unless  there  is  provision 
to  the  contrary.  An  explicit  opinion  to  this  extent  is 
in  Litchfield  v.  Register  &  Receiver,  9  Wall.  575  (1869). 
This  was  a  bill  filed  against  the  local  officers  of  a  United 
States  land  office,  asking  an  injunction  to  restrain  them 
from  acting  upon  the  application  of  another  for  land 
claimed  by  him.  The  superior  court  at  the  final  stage 
dismissed  the  bill.  The  ground  taken  by  the  defendant 
thus  prevailed  that  the  department  was  final  within  the 
scope  of  its  authority. 

Mr.  Justice  Miller  delivered  a  comprehensive  opinion  : 
The  principle  has  been  so  repeatedly  decided  in  this  court 
that  the  judiciary  cannot  interfere,  either  by  mandamus 
or  injunction,  with  executive  officers,  such  as  the  respond- 
ents here,  in  the  discharge  of  their  official  duties,  unless 
those  duties  are  of  a  character  purely  ministerial  and 
involving  no  exercise  of  judgment  and  discretion,  that 
it  would  seem  to  be  useless  to  repeat  it  here.     The  lands 

ss  Exclusive. — Gaines  v.  Thompson,  7  Wall.  352;  Secretary  v. 
McGarrahan,  9  Wall.  314;  Shepley  v.  Cowan,  91  U.  S.  340;  Moore 
v.  Robbins,  96  U.  S.  536;  Davidson  v.  New  Orleans,  96  U.  S.  97: 
Fong  Yue  Ting  v.  United  States,  149  U.  S.  715;  Porter  v.  Haighi, 
45  Cal.  631;  Parmalee  v.  Baldwin,  1  Conn.  317;  State  v.  Trustees. 
20  Fla.  405;  People  v.  Bartels,  138  111.  322;  Walker  v.  Hallock.  32 
Ind.  239;  Donahoe  v.  Richards,  38  Me.  379;  Dillingham  v.  Snow. 
5  Mass.  547;  Meade  v.  Haines,  81  Mich.  261;  State  v.  Medical  Exam- 
iners, 34  Minn.  387;  Stuart  v.  Palmer,  74  N.  Y.  194;  American  Pave- 
ment Co.  v.  Wagner,  139  Pa.  St.  623;  Davis  v.  Strong.  31  Vt.  332; 
Henderson  v.  Smith,  26  W.  Va.  829. 

(328) 


Ch.    13]  ITS  ADJUDICATION.  <    ]  15 

in  question  are  situated  within  the  land  district  over 
which  these  officers  have  authority  to  receive  proof  of 
pre-emption,  and  grant  certificate  of  entry.  The  very 
first  duty  which  the  register  is  called  on  to  perform, 
when  application  is  made  to  him  to  enter  a  tract  of  land, 
is  to  ascertain  whether  it  is  subject  to  entry.  Has  there 
been  a  proclamation  offering  it  for  sale;  has  it  been  re- 
served by  any  action  of  Congress,  or  of  the  proper  de- 
partment ;  has  it  been  granted  by  any  Act  of  Congress ; 
or  has  it  been  sold?  These  are  all  questions  for  him 
to  decide  and  they  require  the  exercise  of  judgment  and 
discretion.  He  says  that  the  court  below  erred  because 
it  did  not  require  them  to  come  in  and  answer  to  his 
claim  of  title,  to  put  the  court  in  possession  of  their 
views,  to  defend  their  instructions  from  the  Commis- 
sioner, and  to  convert  the  contest  before  the  land  de- 
partment into  one  before  the  court.  This  is  precisely 
what  this  court  has  decided  that  no  court  can  do. 

It  is  perhaps  necessary  to  reinforce  these  principles. 
Indeed  the  extent  of  the  power  of  the  administration 
in  the  adjudication  of  questions  that  arise  in  the  course 
of  the  application  of  the  law  is  not  often  apprehended. 
The  truth  of  the  matter  is  that  the  power  of  the  admin- 
istration in  its  adjudication  is  often  final:  that  is.  with- 
out appeal  to  any  other  tribunal.  Whenever  a  matter 
is  entrusted  to  the  adjudication  of  the  administration, 
the  decision  of  that  department  is  final  unless  other 
provision  is  made.  The  rule  that  the  power  of  the  ad- 
ministration is  final  within  the  scope  of  its  authority 
goes  to  this  extent. 

An  encyclopaedic  case  upon  these  issues  is  Poster  \. 

(329  > 


§    111,  ADMINISTRATIVE    LAW.  [Qfr     13 

United  States,  32  Ct.  of  01.  170  (1897).  The  facts  were 
peculiar.  Claimant  alleges  that  he  entered  a  quarter-sec- 
tion of  land,  which  grant  was  later,  by  a  combination  of 
circumstances,  avoided  because  certain  conditions  pre- 
cedent had  not  happened.  The  foundation  of  the  suit 
was  that  the  United  States  ought  to  make  reparation  for 
the  failure  of  the  entry  to  take  effect,  There  was  a  statu- 
tory process  provided  which  more  or  less  covered  the 
case.  The  question  was  whether  the  claimant  could  get 
at  the  judicial  courts.  The  court  dismissed  the  com- 
plaint. 

Mott  summarized  the  law:  (1)  Where  Congress 
create  a  class  of  claims,  such  as  customs  cases,  or  na- 
tional revenue  cases,  or  pension  cases,  and  provides  a 
jurisdiction  for  their  ascertainment,  that  jurisdiction  is 
exclusive.  (2)  But  where  Congress  refer  claims  to  ac- 
counting officers  for  payment  and  they  refuse  to  give 
effect,  the  accounting  officers  are  held  to  have  no  more 
than  auditing  powers.  (3)  And  so  where  a  claimant  en- 
tered land  within  the  boundaries  of  a  railroad  grant  and 
paid  the  price,  a  suit  cannot  be  maintained,  because  Con- 
gress annulled  the  grant  in  consequence  of  the  railroad's 
inaction.89 

§  116.     Adjudication  in  controversies. 

Hook,  8  Pen.  Dec.  367  I  1896),  is  a  case  that  gives  an 

^»  Final. — Litchfield  v.  Register  &  Receiver,  9  Wall.  575;  Meade  v. 
United  States,  9  Wall.  691;  United  States  v.  Johnston,  124  U.  S.  236; 
French  v.  Fyan,  93  U.  S.  173;  Marquez  v.  Frisbie,  101  U.  S.  475: 
Stewart  v.  McHarry,  159  U.  S.  650;  Grider  v.  Tally,  77  Ala.  422: 
New  York,  etc.,  R.  Co.'s  Appeal,  62  Conn.  535;  McCord  v.  High,  24  la. 
336;  Attorney-General  v.  Northampton.  143  Mass.  589;  Ham  v.  To- 
ledo R.  R.,  29  Oh.  St.  174;  Hicks  v.  Dora,  42  N.  Y.  47;  State  v.  Ver 
ner,  30  S.  C.  280;  Bledsoe  v.  International  R.  Co..  40  Tex.  568: 
Thurston  v.  Hudgins,  93  Va.  784:  Empev  v.  Plugert.  64  Wis.  612. 

(330) 


Ch.    13J  ITS  ADJUDICATION.  g    U(, 

insight  into  this  adjudication.  A  motion  for  reconstruc- 
tion was  filed  in  this  case  on  the  following  grounds,  as 
stated  by  the  attorney  in  his  motion  :  The  claimant  was 
and  is  drawing  $10  per  month.  His  declaration  for 
increase  was  first  passed  and  then  rejected  in  the  face 
of  the  favorable  report  by  a  ruling  of  the  Medical  Ref- 
eree  that  the  present  rate  is  commensurate  with  the  de- 
gree of  his  disability.  This  opinion  appears  to  inc 
to  be  arbitrary  and  illegal  in  that  he  assumes  a  discre- 
tionary power  that  the  law  does  not  confer  upon  him. 
If  by  the  strokes  of  his  pen  the  Medical  Referee  can  vir- 
tually annul  and  set  aside  the  finding  and  report  of 
two  medical  examinations— the  actual  conclusion  of  six 
physicians  who  are  sworn  officers  of  the  Government — 
then  why  are  such  examinations  made?  I  ask  this  not 
for  the  purpose  of  casting  any  reflections,  but  solely  in 
the  interest  of  the  legal  phase  of  the  situation. 

The  Assistant  Secretary,  Reynolds,  did  not  leave  this 
attorney  in  any  doubt  as  to  the  internal  law  on  this  sub- 
ject of  administration  by  adjudication:  The  question 
immediately  arises,  to  what  end  are  all  these  inferior 
officers,  the  Surgeons  and  the  Referee,  appointed?  The 
Commissioner  of  Pensions  cannot  personally  interview 
each  applicant  or  inquire  into  his  alleged  disabilities, 
neither  is  it  to  be  supposed  that  one  official  or  any  other 
one  man  can  pass  intelligently  upon  the  multitudinous 
and  various  questions  that  arise  in  the  adjudication  of 
pension  claims  when  such  questions  involve  special  and 
technical  knowledge  in  the  various  sciences.  It  is  neces- 
sary that  the  facts  be  laid  before  the  ( 'oinmissioner,  and 
when  medical  ami  surgical  facts  are  involved  the  clear 
intent  of  the  law  is  thai    in  justice  to  the  claimant  as 

(331) 


§    110  ADMINISTRATIVE    LAW.  |^Ch.    13 

well  as  to  the  Government  medical  facts  shall  be  brought 
out  by  the  skilled  in  that  particular  science  which  will 
serve  as  a  guide  to  the  Commissioner  of  Pensions  in 
arriving  at  Iris  conclusions;  but  the  Commissioner  of 
Pensions  is  not  bound  by  this  expert  opinion.  He  ren- 
ders his  decision  upon  all  the  evidence  in  the  case  which 
touches  upon  the  points  in  issue.  That  the  Medical 
Referee  should  not  be  bound  by  ratings  affixed  by 
the  Boards  of  Surgeons  ought  to  be  apparent  upon  the 
same  course  of  reasoning.  He  is  doubtless  often  aided 
by  the  opinion  of  the  examining  surgeons  as  to  how 
much  to  use  the  words  of  the  statute  in  their  judgment, 
as  he  must  and  does  arrive  at  his  conclusion  by  reason 
of  the  facts  shown.  It  should,  however,  be  remembered 
that  neither  the  opinion  of  the  examining  surgeons  nor 
the  Medical  Referee's  opinion  is  final.  It  is  the  Com- 
missioner of  Pensions  who  finally  passes  upon  the  ques- 
tion; and  he  reaches  his  conclusions  upon  all  the  evi- 
dence, using  as  means  to  that  end  all  of  the  various 
agencies  that  are  placed  at  his  disposal,  potent  among 
which  are  the  facts  and  opinions  as  set  out  in  the  cer- 
tificate of  the  examining  boards  and  the  judgment  of 
the  Medical  Referee. 

This  opinion  is  worth  quotation  at  this  length,  because 
it  sets  forth  in  the  clearest  manner  possible  the  view  of 
the  administration.  Upon  the  whole  this  ruling  is  one 
of  the  most  perspicuous  statements  of  the  situation  in 
administration.  In  administration  the  officers  at  the 
bottom  of  the  hierarchy  decide  the  questions  that  arise 
in  administration,  and  it  is  the  usual  practice  that  the 
officers  at  the  top  of  the  hierarchy  do  not  act  unless  there 
is  an  appeal.  That  is  the  internal  law  of  the  administra- 
(332) 


Ch.    13]  ITS  ADJUDICATION.  g    HO 

tioii — to  facilitate  the  conduct  of  its  business.  But  the 
fact  remains  that  the  officer  at  the  top  can  always  come 
down  upon  the  officer  at  the  bottom,  set  that  officer  aside 
and  decide  upon  the  matter  himself.  The  key  to  this  is 
that  the  internal  law  of  administration  is  in  last  analysis 
the  discretion  of  the  superior  reduced  to  rules  for  the 
ordinary  rase,  free  of  these  rules  in  the  extraordinary 
case.     Such  is  all  administration. 

Ii  is  needless  to  pile  case  on  case  for  this  fundamental 
principle:  that  if  a  matter  in  which  the  government  is 
involved  is  given  over  to  an  officer  for  his  determina- 
tion, his  decision  is  final.  This  is  the  familiar  law  of 
the  functions  of  the  administration:  that  if  an  officer  is 
invested  with  a  discretionary  power  to  act  in  behalf  of 
the  government,  all  that  he  docs  in  the  exercise  of  thai 
discretion  is  final.  This  is  the  foundation  of  this  method 
of  administration  in  last  analysis,  as  indeed  it  is  the 
foundation  of  all  powers  in  administration— discretion. 
This  is  all  that  is  meant  when  it  is  said  that  an  officer 
has  judicial  powers  in  the  premises  and  that  his  juris- 
diction over  that  subject  matter  is  therefore  exclusive. 

A  case  in  the  administrative  law  reports  that  is  re- 
garded as  a  leading  authority  is  Pueblo  Case,  5  Land 
Dec.  483  (1887).  This  was  an  application  which  in- 
volved inter  alia  the  recall  and  cancellation  of  the  patent 
of  the  United  States  to  the  city  of  San  Francisco  and 
for  the  issue  of  a  new  patent  with  different  boundaries. 
tO-wit,  the  boundaries  of  whai  is  known  as  the  Straiten 
Survey.  It  was  insisted  by  counsel  thai  the  Secretary 
of  Interior  has  not  the  power  to  reverse  the  action  of 
the  Commissioner  upon  the  survey  of  a  land  claim  pend- 
ing before  him.  Thai  involved  passing  upon  the  ques- 
ts ^ 


g   116  ADMINISTRATIVE    LAW.  [Ch.    13 

tion.  The  decision,  therefore,  is  a  fundamental  one: 
whether  the  Commissioner  of  the  Land  Office  was  in  the 
determination  of  controversies  independent  of  the  Sec- 
retary of  Interior. 

The  opinion  of  Secretary  Lamab  establishes  that 
in  this  manner :  By  various  acts  of  Congress  the  powers 
of  the  Department  are  clearly  defined.  These  acts  are, 
so  far  as  it  is  necessary  for  me  at  present  to  consider 
them,  embodied  in  the  Revised  Statutes.  Title  XI  treats 
of  the  Department  of  the  Interior  and  makes  the  Secre- 
tary of  the  Interior  the  head  thereof.  The  third  Chap- 
ter provides  as  follows:  The  Commissioner  of  the  Gen- 
eral Land  Office  shall  perform  under  the  direction  of 
the  Secretary  of  Interior  all  executive  duties  appertain- 
ing to  the  surveying  and  sale  of  the  Public  Lands  of 
the  United  States,  and  also  such  as  relate  to  private 
claims  of  land  and  the  issuing  of  patents  for  all  grants 
of  land  under  authority  of  the  government.  The  position 
of  the  applicants  against  the  authority  of  the  Secretary 
to  review  the  decision  of  the  Commissioner  of  the  Gen- 
eral Land  Office  rests  upon  the  ground  that  the  action 
of  the  Commissioner  is  passing  upon  the  correctness  of 
surveys  of  private  land  claims  is  a  quasi  judicial  pro- 
ceeding, and  therefore  not  subject  to  review,  as  no  appeal 
to  the  Secretary  in  such  eases  is  specifically  provided. 
Passing  upon  correctness  of  private  land  claims  made 
by  subordinate  officers  necessarily  involves  the  exercise 
of  judgment  and  may  properly  be  called  a  quasi  judicial 
proceeding:  lair  it  is  none  the  less  a  proceeding  taken  in 
the  discharge  of  an  executive  duty  of  the  Commissioner. 
There  seems  to  be  some  misapprehension  as  to  the  mean- 
ing of  the  term  "executive  duty."  The  executive  duties 
0334) 


Ch.    13]  ITS  ADJUDICATION.  k    llh 

of  any  one  of  the  departments  are  such  as  are  required 
of  its  officers  in  the  administration  of  the  law  upon  the 
subjects  under  its  jurisdiction.  They  are  not  the  less 
executive  duties  because  they  require  in  their  perform- 
ance the  examination  of  evidence  and  the  exercise  of 
judgment  thereon.  All  executive  duties  which  are  any- 
thing beyond  the  performance  of  ministerial  acts  involve 
the  exercise  of  judgment,  such  as  examination,  decision 
and  final  judgment,  but  they  are  not  judicial  acts.  There 
is  hardly  an  act  of  any  moment  performed  in  an  execu- 
tive department  which  would  not,  if  such  were  the  case, 
be  taken  from  the  supervision  and  control  of  its  head. 
The  statutes  in  placing  the  whole  business  of  the  Depart- 
ment under  the  supervision  of  the  Secretary  invest  him 
with  authority  to  review,  reverse,  amend,  annul  or  affirm 
all  proceedings  in  the  Department  having  for  their  ulti- 
mate object  to  secure  the  alienation  of  any  part  of  the 
public  lands  or  the  adjustment  of  claims  to  lands. 

This  leading  ruling  is  quoted  at  such  length  because  it 
sets  forth  in  exact  language  the  theory  of  the  adminis- 
tration as  to  the  nature  of  its  adjudication  and  its  func- 
tion therein.90 

so  Adjudication  in  Contboversies. — Evans  v.  Eaton,  7  Wheat. 
434;  Murray's  Lessee  v.  Hoboken  L.  &  I.  Co.,  18  How.  272;  United 
States  v.  Jordan,  113  U.  S.  423;  Arnson  v.  Murphy,  115  U.  S.  580: 
Spencer  v.  Merchant,  125  U.  S.  356;  Auffmordt  v.  Hedden,  137  U.  S. 
323;  Norwood  v.  Baker,  172  U.  S.  269;  French  v.  Barber  Asphalt  Pav. 
Co.,  181  U.  S.  324;  Ex  parte  Bridge  Co.,  62  Ark.  461;  Downer  v. 
Lent,  6  Cal.  94;  Raymond  v.  Fish,  51  Conn.  80;  Bureau  Co.  Sup'rs  v. 
Chicago,  etc.,  R.  Co.,  44  111.  229;  Chicago,  etc.,  R.  R.  v.  Atchison  Co. 
Com'rs,  54  Kan.  781:  Gatch  v.  Des  Moines,  63  la.  718;  Monticello. 
etc.,  Co.  v.  Baltimore.  90  Md.  417;  Weimer  v.  Bunbury.  30  Mich.  201  : 
Nelson  Lumber  Co.  v.  McKinnon,  61  Minn.  219;  State  v.  Chicago, 
etc.,  R.  R..  29  Neb.  412;  Central  R.  R.  Co.  v.  Assessors,  48  N.  J.  L. 
1;  Stuart  v.  Palmer,  74  N.  Y.  183;  King  v.  Portland.  38  Ore  102 
Harrisburg  v.  McPherran.  200  Pa.  St.  343;    Dietz  v.  Neenah,  91   Wis. 

(  335  ) 


§117  ADMINISTRATIVE    LAW.  [Cn.     13 

>  117.     Concurrent. 

In  the  present  paragraph  the  executive  department  is 
seen  with  a  concurrent  jurisdiction  vested  in  it.  The  con- 
(1  it  ion  is  that  administrative  adjudication  must  precede; 
but  if  another  examination  of  the  question  is  wished  aft- 
erwards before  the  judicial  department,  that  may  be  de- 
manded. As  the  greater  includes  the  less,  so  if  it  is  con- 
stitutional to  give  an  exclusive  jurisdiction  to  the  execu- 
fcive  department  over  these  contests,  there  can  be,  of 
course,  no  constitutional  objection  to  the  grant  of  a  con- 
current jurisdiction  to  it. 

In  this  connection  Cheatham  v.  United  States,  92  U. 
S.  85  (1875  »,  is  worth  discussion.  A  party  against  whom 
an  assessment  was  made  for  an  income  tax  in  1865  ap- 
pealed therefrom  to  the  Commissioner  of  Internal  Reve- 
nue, who  in  1807  set  it  aside  and  ordered  a  new  one, 
which  was  made  in  18G8,  and  the  tax  was  thereupon  col- 
lected.  In  18G9  suit  was  begun  to  recover  the  money ; 
the  defense  in  that  suit  was  that  by  the  statute  uo  suii 
could  lie  brought  against  the  collector  unless  begun  with- 
i:i  six  months  from  the  decision  of  the  Commissioner 
upon  the  appeal.  The  question  was  whether  this  was  a 
short  statute  of  limitation  which  ought  not  to  run  until 
the  payment,  when  action  accrued,  or  whether  this  was 
an  express  condition  upon  the  right  to  sue. 

The  opinion  of  the  court  was  by  Mr.  Justice  Miller: 
All  governments  at  all  times  have  found  it  necessary 
to  accept  stringent  methods  for  the  collection  of  taxes, 
and  to  be  rigid  in  the  enforcement  of  them.  These  meas- 
ures are  not  judicial  nor  does  the  government  resort  ex- 

428;  Bartlett  v.  Wilson,  59  Vt.  23;  Violett  v.  Alexandria.  92   Va.  561; 
State  v.  Cheney,  45  W.  Va.  478. 

(336) 


Ch.    13]  ITS  ADJUDICATION.  §   u; 

cept  in  extreme  cases  to  the  courts  for  that  purpose.  The 
revenue  measures  of  every  sovereign  government  consti- 
tute a  system  which  provides  for  its  enforcement  hy  offi- 
cers commissioned  for  that  purpose.  In  this  country 
this  system  provides  safeguards  of  its  own  against  mis- 
take, injustice  or  oppression  in  the  administration  of 
the  revenue  laws.  Such  appeals  arc  allowed  to  specified 
tribunals  as  the  Law-makers  deem  expedient.  Such  reme- 
dies also  for  recovering  back  taxes  as  may  seem  wise 
are  provided.  In  these  respects  the  United  States  have 
enacted  a  system  of  corrective  justice  as  well  as  a  sys- 
tem of  taxation.  In  both  these  extremes  of  the  internal 
revenue,  that  system  is  intended  to  be  complete.  The 
government  has  the  right  to  prescribe  the  conditions  on 
which  it  will  subject. itself  to  the  judgment  of  the  courts; 
while  the  free  course  of  remonstrance  and  appeal  may 
be  allowed  within  the  departments,  that  is  all  a  statu- 
tory matter.  The  general  government  has  wisely  made 
the  payment  of  the  tax  claim,  whether  customs  or  in- 
ternal revenue,  a  condition  precedent  to  access  to  the 
court.  The  objecting  party  can  then  take  his  appeal. 
We  regard  this  as  a  condition  on  which  alone  the  gov- 
ernment consents  to  litigate  the  lawfulness  of  the  origi- 
nal tax.  It  is  not  a  hard  condition.  Few  governments 
have  conceded  such  a  right  on  any  condition. 

This  condition  of  the  law  is  seen  in  Nichols  v.  United 
stales,  7  Wall.  122  (1SG8).  The  statute  provided  in  thai 
case  that  no  action  could  be  maintained  against  any  col- 
lector to  recover  the  amount  of  duties  paid  under  pro- 
test unless  the  said  protest  was  made  in  writing  and 
signed  by  the  claimant  at  or  before  the  payment  of  the 
duties,  setting  forth  distinctly  and  specifically  the 
grounds  of  objection  to  the  paymenl  thereof.     Notwith- 

i  337) 

Adm.   Law— 22. 


§    US  ADMINISTRATIVE    LAW.  j"(Jh.    13 

standing  this,  Nichols  .Sc  Company,  after  having  paid  the 
duties  with  no  protest  in  the  matter,  brought  suit  against 
the  United  States  for  the  over-payment  in  the  Court  of 
Claims.  The  question  was  then  whether  this  protest  was 
a  condition  precedent,  indispensable  in  bringing  suit. 

The  court  held  that  this  was  the  exclusive  method. 
Mr.  Justice  Davis  said:  The  prompt  collection  of  the 
revenue  and  its  faithful  application  is  one  of  the  most 
vital  duties  of  the  government.  Congress  has  from  time 
to  time  passed  laws  on  the  subject  of  revenue,  which  not 
only  provide  for  the  manner  of  its  collection  but  also 
point  out  a  way  in  which  errors  may  be  corrected.  These 
laws  constitute  a  system  which  Congress  has  provided 
for  the  benefit  of  those  persons  who  complain  of  illegal 
assessment  of  taxes  and  illegal  exactions  of  duty.  Jn 
the  administration  of  the  tariff  laws,  as  we  have  seen. 
the  Secretary  of  Treasury  decides  what  is  due  on  a  spe- 
cific importation  of  goods ;  but  if  the  importer  is  dissatis- 
fied with  this  decision,  he  can  contest  the  question  in  a 
suit  against  the  Collector,  if  before  he  pays  the  duties 
he  tells  the  officers  of  the  law  in  writing  why  he  objects 
to  that  payment.  If  the  importer  does  not  protest,  his 
right  of  action  is  gone.  The  mischiefs  that  would  re- 
sult if  the  aggrieved  party  could  disregard  the  provisions 
in  the  system  devised  for  his  security  and  benefit  and 
sue  at  any  time  in  the  Court  of  Claims  forbid  the  idea 
that  Congress  intended  to  allow  any  other  mode  to  re- 
dress a  supposed  wrong  in  the  operation  of  the  revenue 
laws  than  is  given  in  them.91 

§  118.     Alternative. 

In  certain  cases  the  law  stands  that  although  the  mat- 

91  Concurrent. — Nichols  v.  United  States.   7  Wall.  122:    Averlll  v. 
(338) 


Ch.    13]  ITS  ADJUDICATION.  <    11S 

ter  may  be  brought  before  the  administration  for  its  ad- 
judication, it  need  not  be  so.  A  suit  may  be  brought 
against  the  officer  in  the  ordinary  courts  of  law  at  any 
time.  That  indeed  is  the  situation  unless  there  is  statu- 
tory provision  such  as  has  been  seen  in  the  cases  that 
have  just  been  discussed.  One  of  the  best  known  cases 
upon  that  point  is  United  States  v.  Harmon,  147  U.  S. 
268  (1893).  This  was  a  suit  brought  in  the  Circuit 
Court  by  a  United  States  marshal  to  recover  against  the 
United  States  certain  fees  and  disbursements  which  had 
been  forwarded  by  him  to  the  First  Auditor  of  the  Treas- 
ury and  by  him  allowed,  and  then  by  him  to  the  First 
Comptroller,  and  by  him  disallowed.  The  act  which 
gave  the  Circuit  Court  jurisdiction  withheld  claims  re- 
jected by  any  department  authorized  to  determine  the 
same. 

Whether  this  subject  matter  was  one  upon  which  a 
Comptroller  had  power  of  final  determination  was  there- 
fore the  issue.  Upon  that  Mr.  Justice  BlATCHFORD  said  : 
The  action  of  the  accounting  officers  has  never  been  con- 
sidered as  a  conclusive  determination  when  the  question 
lias  been  brought  before  a  Court  of  Justice.  The  laws 
themselves,  after  providing  that  the  balances  certified 
to  the  heads  of  Departments  by  the  Comptroller  upon 

Smith,  17  Wall.  90;  Cheatham  v.  United  States,  92  U.  S.  85;  Snyder 
v.  Marks,  109  U.  S.  189;  Oberteuffer  v.  Robertson,  lit;  u.  S.  515; 
Auffmordt  v.  Hedden,  137  U.  S.  324;  Saltonstall  v.  Russell,  152  U. 
S.  633;  Medbury  v.  United  States,  173  U.  S.  495;  Eslava  v.  Jones, 
83  Ala.  139;  Wool  fork  v.  Buckner,  60  Ark.  163;  McCormick  v.  Burt, 
95  111.  263;  Spitznogle  v.  Ward,  64  Ind.  30;  Ferry  v.  Campbell,  110 
la.  290:  Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich.  487;  St. 
Joseph  v.  McCabe,  58  Mo.  App.  542;  McDaniel  v.  Tebbetts,  60  N.  H. 
497;  Adams  v.  Ives.  63  N.  V.  650;  American  Pavement  Co.  v.  Wagner, 
139  Pa.  St.  623;  Heth  v.  Radford,  96  Va.  272;  Hubbard  v.  Kelley,  8 
W.  Va.  49;  Druecker  v.  Salomon,  :!1   Wis.  621. 

(339) 


§    118  ADMINISTRATIVE    LAW.  [Q,..  13 

the  settlement  of  public  accounts  shall  not  be  subject 
to  be  modified  by  the  heads  of  the  Departments  but  shall 
be  conclusive  upon  the  executive  branch  of  the  govern- 
ment, adds  in  unequivocal  terms  that  the  same  shall  be 
subject  to  revision  only  by  proper  courts.  That  is,  the 
force  of  this  adjudication  is  administrative  only — inter- 
nal ;  it  has  no  judicial  force — external. 

An  analogous  situation  is  seeu  in  Morgan  v.  Daniels, 
153  U.  S.  120  (1894).  Daniels  in  his  suit  against  Mor- 
gan asserted  in  his  bill  that  he  was  the  original  inventor, 
but  that  the  Commissioner  of  Patents  had  declared  Dan- 
iels to  be  first  inventor.  The  suit  was  brought  under 
an  express  statute  which  gave  a  person  aggrieved  by 
a  refusal  of  the  Patent  Office  this  remedy  by  injunction 
to  establish  his  right.  The  contention  of  counsel  was 
that  the  prior  decision  of  the  Patent  Office  should  stand 
unless  the  testimony  should  show  beyond  any  reasonable 
doubt  that  that  decision  had  been  erroneous. 

Mr.  Justice  Brewer  dealt  with  the  case  in  this  man- 
ner :  This  is  something  different  from  a  mere  appeal. 
It  is  an  application  to  the  Courts  to  set  aside  the  action 
of  one  of  the  executive  departments  of  the  government. 
The  determination  of  the  Patent  Office  has  given  to  the 
defendant  the  exclusive  rights  of  a  patentee.  A  new 
proceeding  is  now  instituted  in  the  Courts — a  proceed- 
ing to  set  aside  the  conclusions  reached  by  an  adminis- 
trative department,  and  to  give  to  the  plaintiff  the  rights 
there  awarded  to  the  defendant.  Upon  principal  au- 
thority it  must  be  laid  down  as  a  rule  that  the  decision 
by  the  Patent  <  )ffice  must  be  accepted  as  controlling  upon 
that,  question  of  fan.  unless  the  contrary  be  established 
by  testimony  which  in  character  and  amount  carries 
thorough  conviction. 
(340) 


Ch.    13]  ITS  ADJUDICATION.  g   119 

There  are  then  these  two  classes  of  casts:  The  one 
holds  the  adjudication  of  the  administration  final  upon 
all  the  world;  the  other  holds  the  adjudication  of  the 
administration  final  only  upon  the  administration.  The 
solution  of  this  puzzle  is  that  this  is  all  a  question  of 
statute,  to  what  extent  the  adjudication  of  the  adminis- 
tration shall  be  final.  If  the  Legislature  definitely  en- 
acts that  the  decision  of  the  administration  shall  be  final, 
that  decision  is  not  open  to  a  collateral  attack.  But  if 
the  Legislature  does  not  so  provide,  it  will  not  be  im- 
plied that  the  decision  of  the  administration  is  beyond 
collateral  attack.92 

§  119.     Conclusion. 

In  all  adjudication  by  the  administration  upon  close 
examination  there  are  signs  of  the  administrative  nature 
of  the  proceedings.  Things  are  done  in  administrative 
adjudication  which  could  never  be  done  in  judicial  pro- 
cess. Principles  are  violated  in  administrative  process 
which  are  fundamental  in  the  courts.  Oftentimes  the 
whole  solemn  procedure  is  upset  so  that  there  may  be 
prompt  administration.  All  this  can  mean  but  one 
thing;  and  that  is  that  this  process  is  nothing  more  nor 
less  than  administration.  This  will  be  seen  upon  an 
analysis  of  the  nature  of  the  processes  of  the  adminis- 
tration to  which  the  discussion  now  proceeds. 

'-> *  Alternative. — Collector  v.  Hubbard,  12  Wall.  15;  Erskine  v. 
Hohnbach,  14  Wall.  616;  United  States  v.  Harmon,  147  U.  S.  268; 
Morgan  v.  Daniels,  153  U.  S.  126;  Wisconsin  Cent.  Ry.  v.  United 
States,  164  U.  S.  205;  McCord  v.  High,  24  la.  336;  Strickfaden  v. 
Zipprick,  49  111.  286;  Bright  v.  Murphy.  105  La.  795:  Thomas  v. 
Owens,  4  Md.  189;  Maxwell  v.  Pike,  2  Me.  8;  Gage  v.  Currier,  4  Pick. 
399;  Williams  v.  Weaver,  75  N.  Y.  32;  Sexton  v.  Leliorne,  8  HeisU. 
14;  Milwaukee  Iron  Co.  v.  Schubel,  29  Wis.  444. 

(341) 


CHAPTER  XIV. 

THE  PROCESSES  OF  THE  ADMINISTRATION. 

§  120.  Introduction. 

121.  Ex  Parte  Proceedings. 

122.  Claim. 

123.  Allowance. 

124.  Collection. 

125.  Inter  Partes  Proceedings. 

126.  Contest. 

127.  Protest. 

128.  Remission. 

129.  Conclusion. 

§  120.     Introduction. 

The  external  law  of  administration  governs  the  juris- 
diction of  the  administration  over  controversies  that 
arise  in  the  course  of  the  execution  of  the  law.  But  the 
internal  law  of  the  administration  governs  the  proced- 
ure in  the  controversies  when  the  decision  is  made.  It 
is  to  be  remarked  that  while  the  rules  of  external  law 
that  have  been  discussed  upon  the  whole  are  rigid,  the 
rules  of  the  internal  law  that  are  to  be  discussed,  it  will 
be  found,  are  often  discretionary.  As  this  is  quasi  judi- 
cial work,  upon  the  whole  the  judicial  process  is  used,  as 
that  is  best  adapted  in  a  large  way  to  the  determination 
of  controversies.  But  in  the  course  of  adjudication  by 
the  administration  there  will  often  be  a  departure  from 
the  forms  of  judicial  process.  After  all,  in  any  emer- 
gencies the  administration  is  impatient  of  forms. 

The  nature  of  the  process  in  administration  may  best 
(342) 


Ch.     14]  ITS  PROCESSES.  §   121 

be  seen  by  the  examination  of  some  typical  proceedings 
in  various  lines  of  administration.  In  the  course  of  this 
chapter  examples  of  ex  parte  proceedings  will  first  be 
brought  forward.  There  will  be  a  description  of  a  claim 
before  the  Pension  Office.  Next  there  will  be  a  descrip- 
tion of  an  allowance  before  the  Comptroller's  Office. 
Next  there  will  be  a  description  of  a  collection  by  the 
Customs  branch.  Then  inter  partes  will  be  taken  up. 
Next  in  order,  a  contest  before  the  Patent  Office.  After 
that  a  protest  before  the  Land  Office.  After  that  a  re- 
mission before  the  Internal  Revenue  Office.  It  is  hoped 
that  from  these  diverse  illustrations  some  idea  can  be 
gotten  of  the  processes  of  the  administrations. 

§  121.     Ex  parte  proceedings. 

That  is  because  there  is  no  necessity  in  law  to  use 
judicial  form  in  the  adjudication.  The  only  requirement 
is  that  the  decision  shall  lie  reached  in  s<mie  proper  man- 
ner. A  case  upou  that  point  is  Earnshaw  v.  United  States, 
146  U.  S.  60  ( 1892) .  In  that  case  the  importer  had  been 
given  a  day  to  appear  before  the  appraiser,  llis  clerk 
answered  that  he  was  absent  in  Cuba;  whereupon  he  was 
given  another  day  by  telegram,  to  which  no  reply  was 
made.  The  appraiser  thereupon  adjudicated  upon  the 
case  ex  parte.  The  complaint  of  the  importer  was  thai 
he  had  not  had  a  proper  opportunity  to  present  his  case 
according  to  due  process. 

Mr.  Justice  Brown  gave  the  opinion  :  It  is  conceded 
in  this  case  that  the  appraisement  was  binding  provided 
that  it  was  properly  conducted.  It  is  complained  that 
due  notice  was  not  given.  No  provision  is  expressly 
made  by  statute  for  notice  to  the  importer.     The  Board 

(343 


§    121  ADMINISTRATIVE    LAW.  I^h.    14 

of  Appraisers  is  invested  with  powers  of  a  quasi  judicial 
character;  and  the  appraisers  are  bound  by  all  reason- 
able ways  and  means  to  ascertain  the  appraisement. 
With  respect  to  their  method  of  procedure,  they  are 
vested  with  a  certain  discretion,  which  will  be  respected 
by  the  courts  except  where  such  discretion  has  been 
manifestly  abused  and  the  Board  has  proceeded  in  wan- 
ton disregard  of  justice.  The  general  principle  is  too 
well  established  to  admit  of  doubt  that  where  the  action 
of  an  inferior  tribunal  is  discretionary  its  decision  is 
final.  The  tribunal  in  this  case  was  created  as  part  of 
the  machinery  of  the  government  for  the  collection  of 
duties  upon  imports,  and  while  its  proceedings  partake 
of  a  semi-judicial  character  it  is  not  reasonable  to  ex- 
pect that  in  notifying  the  importer  it  should  proceed 
with  the  technical  accuracy  necessary  to  charge  the  de- 
fendant with  liability  iu  a  court  of  law.  The  operations 
of  the  government  in  the  collection  of  its  revenue  ought 
not  to  be  embarrassed  by  requiring  too  strict  an  adher- 
ence to  the  forms  and  modes  of  proceedings  recognized 
in  the  courts  of  law,  so  long  as  the  rights  of  its  taxpayers 
are  not  sacrificed. 

A  case  upon  this  point  from  the  administrative  point 
of  view  is  Dargie,  13  Laud  Dec.  277  (1892).  This  was 
a  motion  before  the  Secretary  of  the  Interior  to  remand 
a  certain  contested  case  to  the  Commissioner.  It  was 
argued  in  support  of  this  motion  that  no  notice  of  the 
petition  upon  which  the  cases  were  transmitted  to  the 
department  was  ever  served  upon  the  contestant,  that 
the  transmission  was  therefore  in  violation  of  the  rules 
which  limit  appeal  from  local  officers.  It  was  claimed 
therefore  that  the  department  could  have  no  jurisdiction 
(344) 


Ch.     14  |  ITS  PROCESSES.  £    121 

in  the  matter.  The  question  was  rather  what  should  be 
done  at  this  stage,  than  what  might  be  done  if  the  Sec- 
retary had  seen  fit  to  act. 

Secretary  Xoble  held :  The  fact  that  the  law  places 
the  entire  duty  of  its  execution  upon  the  Secretary  of 
the  Interior  furnishes  no  reason  for  suspending  the  rules 
of  practice  and  depriving  parties  of  the  rights  given 
thereby;  for  the  Secretary  of  the  Interior  is  charged 
with  the  supervision  of  the  public  business  relating  to 
public  land,  and  the  Commissioner  of  the  General  Land 
Office  is  charged  with  the  performance  under  the  direc- 
tion of  the  Secretary  of  the  Interior  of  all  executive 
duties.  The  duty  of  the  Secretary  under  the  act  now 
in  question  is  supervision.  The  usual  and  ordinary 
mode  of  seeking  a  decision  from  the  Secretary  upon 
questions  of  this  character  is  by  way  of  appeal  pointed 
out  in  the  rules  which  have  been  formulated  and  ap- 
proved as  best  adapted  to  protect  the  interests  of  claim- 
ants for  public  lands  and  at  the  same  time  to  expedite 
the  transaction  of  business  in  relation  to  such  lauds. 
None  of  them  shall  be  construed  to  deprive  the  Secretary 
of  Interior  of  the  exercise  of  the  directory  and  super- 
visory powers  conferred  on  him  by  the  law;  but  it  is 
also  true  that  they  are  to  be  followed  when  there  is  do 
occasion  made  out  for  the  invoking  of  these  powers. 
The  importance  of  having  uniform  rules  in  these  mat- 
ters and  of  enforcing  them  has  of  ten  been  recognized.93 

»3  Ex  i'akte  Proceedings. — United  States  v.  Jones.  S  Pet.  375; 
Decatur  v.  Paulding,  14  Pet.  497;  United  States  v.  Tappan.  11  Wheat. 
426;  Lawrence  v.  Caswell,  13  How.  497;  Vance  v.  Burbank,  101  I ". 
S.  519;  United  States  v.  Teller,  107  U.  S.  68;  United  States  v. 
Black,  128  U.  S.  40;  Earnshaw  v.  United  States,  146  0".  S.  67; 
United  States  v.  Harmon,  147  U.  S.  268;   Passavant  v.  United  States. 

(345 


^    122  ADMINISTRATIVE    LAW.  [Qh.     14 

§  122.     Claim. 

The  first  illustration  proposed  is  that  of  a  claim  for 
a  pension  through  the  Pension  Bureau.  The  application 
for  a  pension  which  is  filed  by  the  claimant  contains,  like 
a  declaration,  the  grounds  upon  which  the  pension  is 
claimed,  following-  its  main  point, — the  provision  of  the 
act  under  which  the  application  is  made.  For  example, 
in  an  invalid  pension  the  applicant  must  describe  his 
military  status,  relate  how  he  was  disabled,  state  his 
medical  record  and  set  forth  what  rating  he  claims. 
Of  course  this  matter  is  all  covered  by  general  forms. 

The  first  stage  in  the  proceedings  in  the  Pension  Office 
may  be  briefly  described.  The  application  is  recorded 
in  the  Record  Division.  From  the  Record  Division  it 
is  sent  to  the  proper  Adjudicating  Division,  according 
to  the  territory  from  which  the  claims  come.  It  is  there 
placed  before  the  chief  of  that  division,  who  assigns  it 
to  a  subordinate  examiner  to  determine  in  the  first  in- 
stance whether  there  is  pensionable  status.  As  pension- 
able status  depends  upon  the  disabilities  of  service  in 
the  case  under  consideration,  the  next  reference  will  be 
to  the  Record  Office  of  the  War  Department.  Upon  the 
answer  of  the  War  Department  the  case  is  reopened  by 
the 'examiner.  The  point  now  is  to  determine  whether 
the  proof  submitted  is  sufficient  to  establish  the  ma- 
terial facts  made  necessary  by  the  law.  It  may  be  neces- 
sary to  call  for  further  proof. 

If  the  claim  is  one  that  requires  proof  of  present  dis- 
ability, the  next  step  in  the  process  is  an  official  medical 

148  U.  S.  219;  Ballew  v.  United  States,  160  U.  S.  187;  Chorpenning 
v.  United  States.  11  Ct.  of  CI.  625;  McElrath  v.  United  States.  12 
Ct.  of  CI.  201. 

(346) 


Ch.    14]  ITS  PROCESSES.  ^    j  22 

examination.  For  this  purpose  the  applicant  is  directed 
to  appear  before  a  Board  of  Examining  Surgeons  which 
sits  in  his  neighborhood.  At  Washington  there  is  a  Med- 
ical Division,  which  has  power  over  all  medical  ques- 
tions in  review.  The  approval  of  this  Medical  Division 
must  be  had  before  the  application  is  in  shape  for  ad- 
judication. 

Meanwhile  from  the  Adjudicating  Division  the  claim 
has  been  forwarded  to  the  Board  of  Review.  This  board 
is  composed  of  reviewers  and  re-reviewers.  There  are 
thus  two  successive  adjudications  upon  the  whole  proof 
submitted  for  each  application.  The  sole  function  of 
these  reviews  is  to  treat  the  question  judicially  upon 
the  law  and  the  fact.  It  is  therefore  almost  impossible 
that  any  point  would  be  left  unnoticed  which  is  not  cov- 
ered by  sufficient  evidence. 

The  matter  is  now  ready  for  the  formal  action  of  the 
<  Nnnmissioner  of  Pensions.  Not  infrequently  it  is  in 
this  office  that  the  application  is  rejected.  The  Com- 
missioner, as  has  been  repeatedly  pointed  out,  has  full 
power  in  the  matter.  The  only  act  in  the  office  which  is 
of  legal  validity  is  this  last  act  of  his.  If  the  application 
is  rejected  an  appeal  is  allowed  from  the  Commissioner 
to  the  Secretary  of  Interior.  The  business  is  done  in 
that  office  by  a  Board  of  Pension  Appeals, — a  useful  body 
of  lawyers  who  have  had  a  salutary  influence  upon  pen- 
sion adjudication.  The  regulations  governing  the  pro- 
cedure in  claims  for  pensions  are  put  in  Appendix  A  for 
further  consultation/" 

•'*  Claim. — Preston,  1  Pen.  Dec.  41;  Riordan,  1  Pen.  Dec.  45; 
Ennis,  1  Pen.  Dec.  127;  Smith,  1  Pen.  Dec.  201;  Romine,  1  Pen. 
Dec.  299;   Lauback,  1  Pen.  Dec.  318;  Morris.  2  Pen.  Dec.  73:  Mueller. 

(347} 


£    123  ADMINISTRATIVE    LAW.  [Ch.     14 

§  123.     Allowance. 

The  second  ill nst ration  proposed  was  the  process  by 
which  a  claim  against  the  government  is  allowed  by  the 
Treasury  Department.  As  before,  the  claim  must  be 
made  according  to  the  regular  form  demanded  by  the 
department.  Moreover  it  must  be  a  liquidated  claim. 
Each  office  of  the  government  has  a  disbursing  officer. 
The  application  in  the  first  instance  should  be  to 
that  officer.  The  next  step  that  must  be  taken  is  ad- 
ministration revision. — some  approval  of  the  disburse- 
ment by  the  officer  who  had  charge  of  the  administration. 
This  is  a  preliminary  stage  simply. 

The  claim  then  goes  to  the  office  of  the  proper  Auditor 
for  allowance.  If  there  has  been  administrative  re- 
vision, the  claim  is  examined  there  by  one  clerk  and  ap- 
proved by  the  chief  of  division;  if  there  has  been  no  ad- 
ministrative revision,  the  claim  is  examined  by  two 
clerks  before  approval  by  the  chief  of  division.  Thus  it 
will  be  seen  that  in  the  office  of  the  Auditor  there  is  a 
careful  adjudication,  so  that  the  claim  is  only  approved 
upon  sufficient  evidence. 

An  account  is  either  settled  as  rendered  or  is  disallowed 
in  whole  or  in  part.  The  party  aggrieved  has  an  appeal 
from  the  Auditor  to  the  Comptroller.  Moreover  the  Comp- 
troller upon  his  own  motion  may  take  up  any  account. 
In  either  case  the  whole  account  is  before  the  Comp- 
troller and   he  may  take  any  action   thereupon   which 

2  Pen.  Dec.  192;  Hamilton,  2  Pen.  Dec.  217;  Gaskell,  3  Pen.  Dec. 
87;  Tuttle,  3  Pen.  Dec.  52;  Sherer,  4  Pen.  Dec.  5;  Johnson,  4  Pen. 
Dec.  167;  Cady,  5  Pen.  Dec.  84;  McElfatrick,  5  Pen.  Dec.  278;  Ben- 
nett, 7  Pen.  Dec.  1;  Ratliff,  7  Pen.  Dec.  6;  Cramer,  7  Pen.  Dec. 
459;  Allen,  7  Pen.  Dec.  568;  Predmore,  8  Pen.  Dec.  165;  Green.  8 
Pen.  Dec.  444;  Hook,  8  Pen.  Dec.  367;  Luther,  9  Pen.  Dec.  72. 

(348) 


Ch.    14]  ITS  PROCESSES.  £    124 

seems  to  him  lit.  The  form  of  the  appeal  sets  forth  the 
reason  of  it;  but  there  is  no  obligation  that  the  decision 
of  the  Comptroller  shall  be  responsive  to  the  pleadings. 
It  is  well  settled  that  the  action  of  the  Comptroller  is 
final  upon  all  the  executive  departments  upon  any  mat- 
ters of  allowance  which  is  within  his  jurisdiction.  Cer- 
tain provisions  governing  the  allowance  of  claims  are  put 
in  Appendix  B  for  further  illustration. 

§  124.     Collection. 

The  third  illustration  proposed  is  that  of  the  process 
by  which  customs  duties  are  collected.  The  general  rule 
is  that  goods  imported  must  be  declared,  the  assessment 
be  made,  and  the  duty  be  paid  at  the  port  of  entry.  Of 
course  each  and  every  article  imported  cannot  be  ex- 
amined by  the  Appraiser.  The  method  is  by  the  exami- 
nation of  a  certain  proportion  of  each  entry.  As  cus- 
toms acts  lay  duties  according  to  two  systems,  specific 
and  ad  valorem,  it  follows  that  the  appraiser  must  have 
in  mind  the  classification  of  goods  and  the  valuation 
of  goods.  When  the  appraisal  lias  been  made,  if  all 
is  found  in  accordance  with  the  entry  which  has  been 
made  by  the  importer,  the  matter  is  passed  for  liquida- 
tion by  the  importer  of  the  duties  imposed. 

95  Allowance. — Exporters'  Case,  5  Laurence,  13;   Gilbert,  Bowler, 
213;    Exposition  Case.  1  Compt.   Dec.  13:    Clerk  of  Court,  1  Corapi. 
Dec.    31;    Requisitions,    1    Compt.    Dec.    409;    Advance    Decisions,    1 
Compt.  Dec.  431;    In  re  Sugar  Bounty,  2  Compt.  Dec.  98;   Claim  of 
Scala,  3  Compt.  Dec.  657;    Heads  of  Departments,  4  Compt.  Dec.    l  ; 
Interstate  Commission,  4  Compt.  Dee.  341:    .Maine  Losses,  4  Compi 
Dec.  622;    Revision  of  Accounts,  4  Compt.  Dec.  723;    Revision  of  an  Ac 
count,  5  Compt.  Dec.  333;  Unliquidated  Damages,  5  Compt.  Dec.  770; 
Professor's  Claim,  5  Compt.  Dec.  520;  Advance  Appeal,  <i  Compt.  !><■' 
50;  Liquidated  Claims,  7  Compt.  Dec.  517;    Pending  Suits,  8  Compt. 
Dec   841. 

19) 


g    125  ADMINISTRATIVE    LAW.  rcj,  #    ]4 

If  the  importer  feels  aggrieved  an  appeal  is  provided 
for  from  the  appraiser  to  the  Board  of  General  Apprais- 
ers. Moreover,  if  the  collector  feels  aggrieved,  he  may 
institute  an  appeal  before  the  Board  of  General  Ap- 
praisers. The  decision  of  this  Board  of  General  Ap- 
praisers may  again  be  upon  the  whole  matter  of  value 
without  regard  to  the  valuation  which  has  been  fixed 
upon  the  goods.  The  decision  of  the  Board  of  General 
Appraisers  upon  dutiable  value  is  final  and  conclusive. 
But  upon  questions  of  classification  either  the  importer 
or  the  collector  may  have  an  appeal  to  the  Judicial 
Courts.  The  administrative  statute  covering  this  is  put 
in  Appendix  C  for  further  use.96 

§  125.     Inter  partes  proceedings. 

Inter  partes  proceedings  are  abnormal  in  administra- 
tion, while  ex  parte  proceedings  are  normal  in  adminis- 
tration. The  true  function  of  the  administration  is  only 
to  determine  upon  matters  between  the  government  and 
citizens;  to  determine  upon  matters  between  citizens  is 
the  true  function  of  the  judiciary.  Therefore  it  cannot 
be  in  the  last  analysis  that  in  inter  partes  proceed- 
ings the  administration  is  doing  anything  but  adminis- 
tration. The  truth  of  the  matter  seems  to  be  that  what 
seems  inter  partes  proceedings  is  in  reality  two  ex  parte 
proceedings  consolidated  into  one  process  for  the  pur- 

96  Collection. — Liquidation,  Treas.  Dec.  No.  7,047:  Examination. 
Treas.  Dec.  No.  9.849;  Protest,  Treas.  Dec.  No.  10,400;  Proceedings 
in  rem,  etc.,  Treas.  Dec.  No.  11.942:  Reappraisements,  Treas.  Dec. 
No.  12,483;  Free  Entry.  Treas.  Dec.  No.  13,677;  Decisions,  Treas. 
Dec.  No.  16,908;  Classification.  Treas.  Dec.  No.  18,211;  Rules  for 
Transaction  of  Business,  Treas.  Dec.  No.  18.488;  Appeal.  Treas.  Dec. 
No.  18,595;   Appraisement.  Treas.  Dec  No.  21.332. 

(  350) 


Ch.    14]  ITS  PROCESSES.  <    125 

pose  of  administration.  At  all  events  that  is  the  hypothe- 
sis defended  in  this  section. 

That  is  seen  in  Fowler  v.  Dodge,  1898  Pat.  Dec.  257 
(1898).  In  this  case  there  had  been  an  issue  in  the 
Patent  Office  upon  the  question  of  priority  between  two 
applicants.  Then  it  appeared  that  upon  one  of  the  ap- 
plications there  was  a  quesl  ion  of  operativeness.  Fowler 
thus  had  an  interest  in  having  the  application  of  Dodge 
withheld;  but  the  question  had  now  become  whether  the 
Patent  Office  should  allow  the  contest  to  proceed.  The 
case,  indeed,  raised  the  very  issue  of  the  nature  of  these 
interference  proceedings  in  the  Patent  Office. 

Greely,  the  Assistant  Commissioner,  said:  Contests 
as  to  whether  a  patent  shall  issue  to  a  particular  appli- 
cant are  permitted  in  this  office,  not  because  of  the  inter- 
est of  the  contestant,  but  because  the  circumstances  are 
such  that  there  is  doubt  as  to  whether  the  applicant  is 
entitled  to  a  patent;  and  this  question  cannot  properly  be 
decided  without  sonic  further  investigation.  After  the 
office  become  satisfied  on  this  question  it  would  not  be 
justified  in  allowing  the  contest  to  continue. 

Another  important  ruling  along  this  same  line  is  Saun- 
ders v.  Baldwin,  9  Land  Dec.  391  (1889).  In  this  ease 
a  contest  was  instituted  for  the  same  land.  By  error  in 
practice  the  contestant  did  not  bring  forward  his  evi- 
dence  at  the  proper  time  set  in  the  regulation.  At  a  later 
time  the  contestant  brought  forward  evidence  which  was 
in  truth  conclusive  in  favor  of  bis  contention.  The  oc- 
cupant claimed,  however,  that  the  contestant  could  have 
no  right  to  have  the  entry  cancelled  in  these  proceedings 
because  he  had  not  come  forward  within  the  requisite 
time  demanded  b\  the  practice  of  the  office. 

(351  ) 


g     12"  ADMINISTRATIVE     LAW.  rQjj     14 

Chandler,  the  Commissioner,  ruled:  The  department 
can  and  may  of  irs  own  motion,  if  necessary,  direct  the 
cancellation.  Th<  government  is  a  real  party  in  inter- 
est against  both  contesting  parties;  and  it  is  entitled  to 
judgment  on  the  facts,  however  snch  facts  may  have  been 
disclosed,  and  whatever  the  rights  of  the  private  parties 
-  againsl  one  am  ulna-.  This  is  the  object  in  all  admin- 
'-1  ration. '" 

§  126.     Contest. 

The  fourth  illustration  proposed  was  of  a  contest  in 
the  Patent  Office  between  two  applicants.  The  first  pre- 
requisite is  that  each  application  should  be  found  good 
rding  to  1  lie  n  giilar  process  in  point  of  patentability. 
This  involves  an  examination  of  each  application  before 
tin-  proper  Primary  Examiner  and  an  allowance  by  him, 
according  to  the  nroper  course  of  proceedings.  It  may 
then  appear  that  two  applications  interfere:  that  is,  that 
two  claims  have  the  same  tenor  and  scope.  If  such  an 
interference  is  found  between  two  aoDlications,  either  by 
discovery  of  the  examiners  <>r  by  indications  of  one  of 
the  applicants,  the  two  claims  are  certified  to  another 
division  of  the  Patent  Office  and  there  put  in  interfer- 
ence. The  Examiner  of  Interferences  then  adjudicates 
the  priority  between  the  two  applications  upon  the 
ease  as  submitted  to  him. 

steb    Partes    Peoci  -      West    v.    Cochran.    IT    How 

Commissioner  v.  Whiteley.  4  Wall.  532:   Collector  v.   I  1   Wall. 

182;    Pahlman   v.   Colled  Clinkenbeard    v.    I 

-    21  Wall.  65;   Snyder  v.  Marks.   I        .".  S.  193;   Butterworth  v. 
United  States.  112  C.  S.   "       Caha  i     On       I   S  ates,  152  t".  S 
Morgan  v.   Daniels.  153  U.   S.  120;    Orchard   v.  Alexander.  157   t".   S. 

Michigan  L.  &  L.  Co.  v.  Rust.  168  U.  S.   602;    United  States  v. 
Duell.  172  U.   S    582. 


Ch.  14]  ITS  PROCESSES.  <    127 

If  either  applicanl  is  aggrieved  the  appeal  lies  in  due 
course  to  the  Board  of  Examiners-in-Chief.  The  pro- 
cess  before  the  Examiners-in-Chief  is  more  formal.  A 
record  is  made  up  and  submitted.  The  Examiners-in- 
Chief  in  usual  confine  their  decision  to  the  pleadings  sub- 
mitted !<•  them.  Their  decision  upon  the  interference  in 
point  of  law  and  fad  i>  then  given  in  due  form. 

From  tin-  derision  of  I  he  Examiners-in-(  !hief  an  appeal 
lies  to  the  Commissioner  himself.  In  an  extraordinary 
case  the  Commissioner  may  require  the  matter  to  be 
brought  before  him  on  his  own  motion.  It  often  happens 
that  before  the  Commissioner  or  the  Assistant  Commis- 
sioner mosl  important  questions  involving  great  prop- 
erty interests  are  argued  with  the  same  forms  as  in  any 
court  of  law.  If  either  parry  feel  aggrieved  by  the  de- 
cision of  the  Commissioner  an  appeal  lies  according  to 
the  provisions  of  the  specific  statute  to  the  judicial 
courts.  This  statute  has  been  criticized  on  an  earlier 
page.  The  rules  of  practice  in  this  matter  are  put  in 
Appendix  J)  for  further  detail.98 

§  127.     Protest. 

The  fifth  illustration  proposed  was  that  of  a  protest  by 
a  stranger,  which  is  allowed  by  the  process  of  the  Land 
Office.     A   statute  gives  a   right  of  preferential   entry 

C      pest.     Foster  v.  Few;-  at.  Dec.  35;   Krake,  1869  Pat. 

Dec.  100;  Hull,  1869  Pat.  Dec.  68;  Eames  v.  McDougall,  1ST1  Pat. 
206;  Clymer's  Appeal,  1S74  Pat.  Dec.  72;  United  States  v. 
Thacher,  7  O.  G.  603;  Little  v.  Lillie,  10  O.  G.  543;  Whiteley  v.  Mc- 
Cormiek.  10  O.  G.  826;  Wilson  v.  Yakel,  10  O.  G.  944;  Fibers,  1877 
Pat.  Deo.  123;  Ex  parte  Rodgers,  1879  Pat.  Dec.  207;  Packard  v. 
Sandfcrd,  1879  Pat.  Dec.  314;  Hibbard  v.  Richmond.  j7  O.  G.  1155; 
Moore,  1881  Pat.  Dec  249;  Sellers  v.  Walter,  37  O.  G.  1001;  Z< 
v.  Leech,  1891  Pat.  Dec.  9:  Fowler  v.  Dodge,  1898  Pat.  Dei 

(353) 

Adm.  Law— 23. 


§    127  ADMINISTRATIVE    LAW.  ^Ch.    14 

upon  a  tract  of  land  to  a  contestant  who  has  protested 
and  procured  the  cancellation  of  any  entry  by  any  pre- 
vious entrymau.  The  policy  of  this  act  requires  some 
explanation.  It  was  remedial  to  keep  lands  which  had 
been  occupied  unjustly  still  open  for  entry  and  to  induce 
citizens  to  co-operate  in  unearthing  frauds  upon  the 
government  by  giving  to  the  successful  contestants  the 
premium  of  a  preferential  entry.  Such  a  contestant  may 
thus  appear  after  auy  entry  and  file  his  protest  against 
the  occupants  in  the  form  required  by  the  regulations  of 
the  department. 

The  matter  is  first  adjudicated  before  the  local  land 
officers  who  decide  the  matter  after  a  full  hearing  upon 
the  law  in  fact  involved.  After  the  decision  upon  the 
contest  by  the  local  officers,  the  whole  record  of  the 
case  is  forwarded  to  the  General  Land  Office.  An  ap- 
peal from  the  decision  of  the  Register  and  Eeceiver  may 
be  taken  by  either  party.  Moreover,  as  in  all  adjudica- 
tion by  the  administration,  the  Commissioner  may  take 
the  matter  up  upon  his  own  motion  in  extraordinary  cir- 
cumstances. At  all  events  the  matter  is  in  Washington 
referred  to  the  Contest  Division,  where  the  whole  merits 
of  the  controversy  are  reviewed  and  laid  before  the  Com- 
missioner for  his  action. 

When  a  final  adjudication  has  been  made  by  the  Gen- 
eral Land  Office,  either  party,  if  he  still  feels  aggrieved, 
may  take  an  appeal  to  the  Secretary  of  the  Interior. 
There  the  matter  is  decided  by  a  trained  body  of  ex- 
perts who  act  under  the  direction  of  an  Assistant  Attor- 
ney-General assigned  to  the  Interior  Department  for  this 
purpose.  This  is  the  last  stage  possible  in  the  proceed- 
ing and  the  adjudication  is  therefore  adequate  and  thor- 
(354) 


(Jh.    14]  ITS  PROCESSES.  £    128 

ougli  upon  the  points  taken.  The  process  necessary  in 
such  contests  is  put  in  Appendix  E,  if  more  information 
is  wanted." 

5  128.     Remission. 

The  sixth  illustration  proposed  was  an* account  of  the 
proceedings  for  an  abatement  of  a  tax  which  must  be 
made  before  the  office  of  the  Commissioner  of  Internal 
Revenue.  Upon  the  whole  the  complainant  has  no  reme- 
dy until  the  tax  has  been  paid  by  him  to  the  collector. 
The  rule  in  cases  of  collection  is  to  pay  first  and  litigate 
afterwards.  It  is  true  that  after  assessment  it  is  not 
impossible  that  a  motion  for  an  abatement  of  the  tax  may 
be  entertained  by  the  Commissioner  before  payment  of 
the  tax  to  the  Collector;  but  upon  the  whole  no  motion 
for  remission  will  generally  be  entertained  until  the  tax 
has  been  paid,  when  a  motion  for  a  refund  is  in  order. 

The  claimant  must,  as  in  the  usual  administrative  pro- 
cess, set  forth  his  claim  upon  a  form  provided,  which 
relates  the  essential  facts  and  makes  the  points  upon 
which  he  believed  he  should  have  refund.  The  motion  is 
first  passed  upon  by  the  Collector,  who  must  make  affi- 
davit of  his  finding.  The  papers,  together  with  all  the 
evidence  in  the  case,  is  then  forwarded  to  the  principal 
office,  where  a  decision  is  made  upon  the  matter.  Upon 
the  whole,  the  decision  of  the  Commissioner  is  final  upon 

":>  Protest. — So.  Minnesota  Ry.  v.  Kufner,  2  Land  Dec.  492;  Field 
v.  Black,  2  Land  Dec.  581;  Albion  Mfg.  Co.,  4  Land  Dec.  376;  Stevens 
v.  Robinson,  5  Land  Dec.  Ill;  Pueblo  Case,  5  Land  Dec.  483;  Middle 
Grounds,  7  Land  Dec.  255;  Saunders  v.  Baldwin,  9  Land  Dec.  391; 
Gray  v.  Whitehouse,  15  Land  Dec.  352;  Mott  v.  Coffman,  19  Land 
Dec.  106;  Currency  Min.  Co.,  20  Land  Dec.  178;  Trotter  v.  Yowell,  21 
Land  Dec.  54. 

(355) 


§    129  ADMINISTRATIVE    LAW.  [(Jh.    14 

the  executive  department.     The  statutes  governing  such 
abatement  are  in  Appendix  F.100 

§  129.     Conclusion. 

It  is  not  pretended  that  it  would  be  safe  to  follow  this 
outline  in  proceeding  in  any  actual  case  before  the  office 
without  a  careful  consultation  of  the  regulations  which 
are  in  the  appendix.  All  that  has  been  wished  is  to  bring 
together  a  variety  of  illustrations  of  the  sort  of  thing 
that  is  met  in  practice  before  the  various  offices  of  the 
administration.  The  appendix  will  be  found  more  def- 
inite as  to  the  steps  necessary  in  procedure  of  a  given 
department. 

Moreover,  it  is  hoped  that  a  more  definite  idea  of 
the  methods  employed  in  administration  may  be  had 
even  after  the  description  of  the  proceedings  is  re- 
duced to  such  general  terms  as  to  be  vague.  Upon  the 
whole,  one  is  impressed  by  the  excellent  balance  main- 
tained in  administration  between  form  and  substance. 
The  regulations  indeed  are  explicit  upon  the  forms  to  be 
observed  in  the  practice;  but  whenever  a  case  arises 
where  these  forms  would  obstruct  the  due  execution 
of  administrative  justice  they  are  not  followed.  This  is 
the  most  characteristic  thing  in  the  processes  of  the  ad- 
ministration. 

ioo  Remission. — In  re  Brown,  3  Int.  Rev.  Rec.  134;  In  re  Phillips, 
10  Int.  Rev.  Rec.  107;  Compromises,  12  Opin.  472;  Taxes,  13  Opin. 
439;  Instructions,  22  Int.  Rev.  Rec.  109;  Commissioner,  Treas.  Dec. 
No.  20,459. 

(356) 


CHAPTER  XV. 

THE  JURISDICTION  OF  THE  ADMINISTRATION. 

§  130.  Introduction. 

131.  Scope  of  Jurisdiction. 

132.  Administration  by  Execution. 

133.  Administration  by  Legislation. 

134.  Administration  by  Adjudication. 

135.  Extent  of  Jurisdiction. 

136.  Conclusion. 

§  130.     Introduction. 

The  last  question  of  all  is  the  jurisdiction  of  the  ad- 
ministration. Throughout  this  extended  discussion  the 
administration  has  been  seen  in  the  exercise  of  various 
powers.  Sometimes  what  was  noted  was  administration 
by  execution ;  sometimes  what  was  found  was  administra- 
tion by  legislation;  sometimes  what  was  remarked  was 
administration  by  adjudication.  Upon  the  whole  the 
point  of  view  has  been  for  the  most  part  thus  internal ; 
in  what  way  may  the  administration  act  ?  Now,  by  way 
of  precaution,  it  will  be  well  to  take  last  of  all  the  other 
point  of  view,  external;  beyond  what  limits  may  the 
administration  not  act?  In  a  word,  this  last  question  is 
concerned  with  the  extent  of  the  jurisdiction  of  the  ad- 
ministration over  all  these  various  questions  which  it 
takes  upon  itself  to  decide. 

§  131.     Scope  of  jurisdiction. 

A  recent  case  contains  the  best  general  discussion  of 
this  problem — Eex  v.  Commissioners  [1901]  2  K.  B.  879 
(1901).     Kodak,  Limited,  an  English  company,  had  its 

(357) 


§    131  ADMINISTRATIVE    LAW.  [Ch.    15 

principal  place  of  business  in  London.  The  Eastman 
Kodak  Company,  a  New  York  company,  had  its  prin- 
cipal place  of  business  in  that  state.  It  appeared 
that  98  per  cent,  of  the  capital  stock  of  the  American 
company  was  owned  by  the  English  company ;  and  there 
was  evidence  tending  to  show  that  the  direction  over 
the  whole  business  came  from  the  London  office,  so  that 
the  American  company  was  to  all  intents  the  agent  of 
the  English  company.  Upon  that  view  of  the  matter, 
the  Commissioners  for  the  London  district  assessed  the 
income  tax  not  only  upon  all  the  profits  of  the  English 
business,  but  upon  all  the  profits  of  the  American  busi- 
ness as  well.    This  was  an  application  for  a  prohibition. 

Sterling,  Lord  Justice,  drew  this  important  distinc- 
tion :  It  appears  to  me  that  this  section  of  the  statutes 
conferred  upon  these  Commissioners  jurisdiction  to 
charge  any  person  carrying  on  a  trade  within  that  district 
in  respect  to  the  whole  profits  of  his  trade,  whether  that 
trade  be  wholly  or  partly  carried  on  within  the  district; 
or,  in  other  words,  the  only  essential  requisite  to  the  ex* 
istence  of  the  jurisdiction  to  charge  a  trader  in  respect 
of  the  whole  profits  is  that  he  be  found  within  the  district 
carrying  on  the  trade  in  part.  Having  jurisdiction  to 
charge  in  respect  to  all  profits,  they  have  jurisdiction  to 
decide  all  questions  of  fact  necessary  for  making  the  full 
assessment,  and,  therefore,  to  determine  the  true  extent 
of  the  trade.  In  my  opinion  it  is  not  true  to  say  that 
the  facts  found  by  the  Commissioners  in  the  course  of 
an  inquiry  properly  entered  upon  are  the  facts  which  are 
necessary  to  give  jurisdiction.  In  my  judgment  they  have 
not  exceeded  their  jurisdiction. 

This  same  position  is  taken  in  an  explicit  manner  upon 
(358) 


Ch.  15]  1TS  JURISDICTION  ;<    132 

the  case  to  be  distinguished  from  the  preceding  case 
where  there  is  no  jurisdiction.  In  the  Middle  Grounds, 
7  Land  Dec.  255  1 1888),  there  was  a  question  as  to  the 
right  to  a  certain  tract  of  land  which  had  been  sur- 
veyed in  a  general  way  by  the  Land  Department.  This 
land  in  dispute  had  been  patented  by  the  United  States 
to  a  pre-emption  settler.  The  adverse  claimant  was  the 
State  of  Michigan,  which  based  its  title  under  the  Swamp 
Land  Act.  The  department  took  the  position  in  this  case 
at  the  outset  that  it  had  no  jurisdiction  any  longer,  since 
at  all  events  the  title  to  the  land  in  controversy  was  out 
of  the  United  States. 

To  this  effect  Secretary  Vilas  wrote:  Whatever  al- 
teration has  come  by  accretion  and  the  like  is  a  matter 
between  the  parties.  The  Department  seems  clearly  to 
have  no  jurisdiction  over  the  matter  or  power  to  take 
action  in  any  form.  All  these  questions  can  far  better 
be  determined  by  a  judicial  tribunal  than  by  this  Depart- 
ment. Indeed,  no  action  of  the  Department  would  be 
within  its  jurisdiction.  No  further  action  .should  be 
taken  by  the  Department  in  this  matter,  but  the  parties 
should  mutually  be  left  to  such  proceedings  in  the  courts 
as  they  may  be  advised  to  take  in  the  maintenance  of  their 
respective  claims.  All  action  before  the  Department 
should  be  discontinued.101 

§  132.     Administration  by  execution. 

This  brings  the  discussion  to  the  general  problem.  Let 
it  be  supposed  that  some  officer  of  the  adminisl  rat  ion  has 
extended  power  over  a  certain  subject  mallei-  by  the 
broad  provision  of  some  general  statute.     Then  let  it  be 

i"i  Scope  of  Ji  bisdiction. — Gidley  v.  Palmerston,  3  Brod.  &  I?.  ^7">: 
Rex  v.  Commissioners  I  L901  I  2  K.  B.  879;  Enterprise  Ass'n  v.  Xums 

(359) 


g    132  ADMINISTRATIVE    LAW.  [Ch.    15 

supposed  that  he  does  some  action  in  the  course  of  ad- 
ministration, which  is  close  to  the  line  of  his  authority. 
It  may  be  granted  that  he  has  power  to  decide  matters 
within  his  jurisdiction ;  but  it  may  not  be  granted  that  he 
has  power  to  decide  what  matters  are  within  his  jurisdic- 
tion. The  distinction  may  often  be  a  nice  one,  but  its  ob- 
servance is  an  absolute  necessity  in  point  of  law. 

No  law,  that  is,  is  to  be  construed  to  give  to  the  admin- 
istration authority  to  determine  whether  the  jurisdiction 
exists ;  but  that  question  is  always  open  to  collateral  at- 
tack in  the  judicial  courts.  United  States  v.  Burke,  99 
Federal,  895  (1899  I,  is  a  plain  case  upon  that  point.  A 
statute  gave  to  immigration  officials  power  to  exclude 
aliens  under  certain  circumstances  of  this  qualification. 
Have  such  officials  thereby  power  to  determine  whether 
certain  persous  who  demand  admission  are  aliens  or  not? 
No.  Have  such  officials  power  to  determine  whether  cer- 
tain aliens  are  within  the  disqualifications  laid  down? 
Yes.  That  is  the  distinction  that  the  judge  had  in  mind 
in  this  case. 

Toulmin,  the  District  Judge,  said:  I  am  not  un- 
mindful of  the  provision  of  the  statute  that  in  every  case 
where  an  alien  is  excluded  from  admission  into  the  Unit- 
ed States  under  any  law  or  treaty  now  existing  or  here- 
after made,  decision  of  the  appropriate  Immigration  or 

tein,  64  Fed.  840;  United  States  v.  Burke,  99  Fed.  895;  Lee  v.  Huff, 
61  Ark.  494;  Pacific  Tel.  Co.  v.  Dalton,  119  Cal.  604;  State  v.  Staub, 
€1  Conn.  553;  State  v.  Gamble,  13  Fla.  9;  State  v.  Bell,  9  Ga.  334; 
Partlow  v.  Moore,  184  111.  119;  Brown  v.  Porter,  37  Ind.  206;  Miller 
v.  Horton,  152  Mass.  5*0;  Wall  v.  Trumbull,  16  Mich.  228;  Newman 
v.  Elam,  30  Miss.  507;  McCutehen  v.  Windsor,  55  Mo.  149;  State  v. 
Commissioners,  12  Neb.  6;  United  Lines  Tel.  Co.  v.  Grant,  137  N.  Y. 
7;  Long  v.  Commissioners,  76  N.  C.  273;  McKinney  v.  Robinson,  84 
Tex.  489;  Supervisors  v.  Catlett's  Ex'rs,  86  Va.  158;  Brown  v.  Ma- 
son, 40  Vt.  157;  Milwaukee  Iron  Co.  v.  Schubel,  29  Wis.  444. 

(360) 


Ch.    15]  ITS  JURISDICTION.  §    132 

Customs  Office,  if  adverse  to  the  admission  of  such  alien, 
shall  be  final  unless  reversed  on  appeal  to  the  Secretary 
of  the  Treasury.  Under  the  decisions  the  status  of  any 
alien  and  the  question  of  his  right  to  enter  the  United 
States  is  exclusively  vested  in  the  executive  department 
of  the  government;  and  where  it  has  been  legitimately 
exercised,  the  courts  cannot  interfere  in  behalf  of  the 
aliens.  But  these  complainants  are  not  aliens  coming 
into  the  country  within  the  meaning  of  the  statute; 
therefore,  they  are  not  of  that  class  whose  right  to  re- 
main here  can  be  finally  determined  by  the  executive  de- 
partment of  the  government. 

Cases  like  Miller  v.  Horton,  152  Mass.  540  (1891),  that 
are  upon  the  line  are  difficult  to  deal  with.  This  particu- 
lar case  was  an  action  of  tort  for  killing  the  plaintiff's 
horse.  The  defendants  admit  the  killing,  but  justify  as 
the  members  of  a  Board  of  Health  under  an  order  ad- 
dressed to  the  Board  by  the  Commissioners  on  Contagi- 
ous Diseases  of  Animals.  This  order  declared  that  it  was 
adjudged  that  the  horse  had  the  glanders  and  that  it 
was  accordingly  condemned  to  be  killed.  The  judge  be- 
fore whom  the  case  was  tried  found  that  the  horse  did  not 
have  the  glanders;  but  he  declined  to  rule  that  the  de- 
fendants had  not  failed  to  make  out  their  justification. 

The  opinion  was  by  Mr.  Justice  Holmes:  We  cannot 
admit  that  the  legislature  has  an  unlimited  right  to  de- 
stroy property  without  compensation  on  the  ground  that 
destruction  is  not  an  appropriation  to  public  use.  Cer- 
tainly the  legislature  could  not  declare  that  all  animals 
are  nuisances  and  order  them  to  be  killed  outright  with- 
out compensation.  It  does  not  attempt  to  do  so.  As  we 
have  said,  it  only  declares  diseased  animals  to  be  nui- 
sances. 

(361) 


£    133  ADMINISTRATIVE    LAW.  [Ch.    IS 

With  all  respect  to  so  eminent  a  judge,  it  seems  that 
the  solution  of  this  case  should  be  that  the  legisla- 
ture had  left  the  determination  of  the  question  whether 
I  lie  animals  were  diseased  or  not  to  the  fair  discretion 
of  the  administration.102 

§  133.     Administration  by  legislation. 

As  regulations  depend  upon  a  statute,  they  can  never 
go  to  the  extent  of  being  independent  of  the  statute.  A 
regulation  which  is  in  effect  legislation  is  in  a  just 
sense  a  regulation  no  longer.  That  is,  as  a  regulation  is 
derivative,  it  must  keep  within  the  scope  of  the  statute 
under  which  it  is  framed.  These  are  abstract  distinc- 
tions; the  truth  of  the  matter  is  that  it  is  very  difficult, 
therefore,  to  apply  them  to  particular  cases.  The  course 
of  adjudication  upon  the  jurisdiction  of  the  administra- 
tion to  promulgate  regulations  is  proof  of  this. 

If  this  line  is  passed  it  may  be  argued  with  justice  that 
the  administration  has  gone  beyond  its  proper  func- 
tion. To  show  how  perplexing  the  question  is,  a  state- 
ment of  two  recent  cases  in  the  Supreme  Court  of  the 
United  States  will  be  made.  The  first  of  these  is  United 
States  v.  Eaton,  114  U.  S.  (J77  1 181)2  I .  By  the  terms  of 
the  oleomargarine  statute  the  Commissioner  of  Internal 

i"- An.MixisTRATiox  by  Execution.- — Kendall  v.  United  States,  12 
Pet.  524;  United  States  v.  Sehurz,  102  U.  S.  378;  Eslava  v.  Jones.  83 
Ala.  139;  Danley  v.  Whiteley,  14  Ark.  687;  Harpending  v.  Haight,  39 
Cal.  189;  Howell  v.  Cooper,  2  Colo.  App.  531;  State  v.  Gamble,  13  Fla. 
9;  Barksdale  v.  Cobb,  16  Ga.  13;  McCord  v.  High,  24  la.  336;  State 
v.  Barker,  4  Kan.  379;  Tardos  v.  Bozant,  1  La.  Ann.  199;  Baker  v. 
Johnson,  41  Me.  15;  Magruder  v.  Swann,  25  Md.  173:  Nowell  v. 
Wright,  3  Allen  166;  Allor  v.  Wayne  Co.  Auditors,  43  Mich.  76;  Riley 
v.  James,  73  Miss.  1;  McCulloch  v.  Stone,  64  Miss.  378:  Kimball  v. 
Lamprey,  19  N.  H.  215;  Citizens'  Bank  v.  Wright,  6  Oh.  St.  318; 
Commonwealth  v.  Martin,  170  Pa.  St.  118;  Peters  v.  Auditor,  33 
Grat.  368;  State  v.  Hastings,  15  Wis.  83. 

(362) 


Ch.    IS]  ITS  JURISDICTION.  |    133 

Revenue  was  given  the  power  to  make  regulations  to 
carry  the  act  into  effect.  The  petitioner,  a  dealer  in 
oleomargarine,  failed  to  comply  with  these  regulations. 
Prosecution  was  begun  against  him  for  the  penalty  for 
the  failure  to  do  anything  required  by  the  act.  Upon  the 
question  whether  the  failure  to  obey  the  regulations  came 
under  this  head  the  lower  court  divided. 

In  the  Supreme  ( Jourt  of  the  United  States  the  opinion 
was  given  by  Mr.". Justice  Blatchford:  It  would  be  a 
very  dangerous  principle  to  hold  that  the  thing  pre- 
scribed by  the  Commissioner  of  Internal  Revenue  as  a 
need  for  regulation  under  the  oleomargaine  act  for  car- 
rying it  into  effect  should  be  considered  as  a  thing  re- 
quired by  law.  Regulations  prescribed  by  the  President 
and  by  the  heads  of  the  Departments  under  authority 
granted  by  Congress  may  be  regulations  prescribed  by 
law.  They  are  lawful  to  support  acts  done  under  them 
and  in  accordance  with  them,  and  may  thus  in  a  proper 
sense  have  the  force  of  law ;  but  it  does  not  follow  that  a 
thing  required  by  them  is  a  thing  required  by  law  so  as  to 
make  the  neglect  to  do  it  a  criminal  offense. 

The  principles  employed  in  the  last  opinion  are  fair 
enough;  for  this  is  a  delegation  of  legislative  authority 
that  makes  the  statute  is  void ;  but  the  application  of 
these  principles  may  well  be  questioned,  for  it  seems  that 
these  regulations  arc1  not  much  more  than  the  detail  to  a 
general  statute.  That  is  in  effect  the  holding  in  the  sec- 
ond case — In  re  Kollock,  165  U.  S.  535  (1897) — which 
must  now  be  regarded  as  the  ruling  case.  The  ad  in  its 
then  form  required  packages  to  be  marked  and  branded; 
prohibited  the  sale  of  packages  that  were  not  ;  and  sel 
down   the  punishment  for  sales  in  violation  of  its  pro- 

(363) 


§   134  ADMINISTRATIVE    LAW.  [Ch.    15 

visions.  It  next  authorized  the  Commissioner  to  make 
regulations  describing  the  marks  and  brands  to  be  used. 
This  proceeding  was  a  habeas  corpus  on  the  ground  of  the 
unconstitutionality  of  that  provision. 

Mr.  Chief  Justice  Fuller  supported  this  statute :  Con- 
sidered as  a  revenue  act  the  designation  of  stamps,  marks 
and  brands  is  merely  the  discharge  of  an  administrative 
function,  and  falls  within  the  numerous  instances  of  reg- 
ulation needful  to  the  operation  of  the  machinery  of  par- 
ticular laws,  authority  to  make  which  has  always  been 
recognized  as  within  the  competency  of  the  legislative 
power  to  confer.  The  identification  of  dealer,  substance, 
quantity,  &c,  by  marking  and  branding  must  be  regarded 
as  a  means  to  effectuate  the  objects  of  the  act.  And  we 
are  of  opinion  that  leaving  the  matter  of  designating 
the  marks,  brands  and  stamps  to  the  Commissioner  in- 
volved no  unconstitutional  legislation.103 

§  134.     Administration  by  adjudication. 

All  that  has  been  laid  down  as  to  the  limitation  of 
the  administration  to  its  jurisdiction  applies  with  pecul- 
iar force  in  the  judicial  proceedings  of  the  administra- 
tion. Indeed,  at  that  stage  of  the  problem  the  situation 
is  plain  to  any  one  used  to  the  law  governing  the  jurisdic- 

!03  Administration  by  Legislation. — United  States  v.  200  Barrels, 
95  U.  S.  571;  Merritt  v.  Welsh,  104  U.  S.  694;  Morrill  v.  Jones,  106 
U.  S.  466;  Campbell  v.  United  States,  107  U.  S.  410;  United  States 
v.  Eaton,  144  U.  S.  677;  In  re  Kollock,  165  U.  S.  535;  Boske  v.  Com- 
ingore,  177  U.  S.  459;  United  States  v.  Ormsbee,  74  Fed.  209;  United 
States  v.  Dastervignes,  118  Fed.  199;  Bloxham  v.  Consumers'  St.  R. 
Co.,  36  Fla.  543;  Orne  v.  Barstow,  175  Mass.  193;  Matter  of  Spangler, 
11  Mich.  323;  Holbrook  v.  Wightman,  31  Minn.  172;  Hilburn  v.  St. 
Paul  R.  R.,  23  Mont.  249;  State  v.  Davis,  69  N.  H.  350;  Hewitt  v. 
Schultz,  7  N.  D.  611;  Lockwood  v.  Bank,  9  R.  I.  333;  Peters  v.  United 
States,  2  Okl.  123;  McSorley  v.  Hill,  2  Wash.  651. 

(364) 


Ch.  15]  ITS  JURISDICTION.  §   134 

tion  of  courts  of  law.  No  tribunal  can  be  final  judge  of 
its  jurisdiction.  At  any  subsequent  time  it  may  always 
be  set  up,  even  in  collateral  proceedings,  that  the  court 
decides  the  question  without  jurisdiction.  That,  also, 
is  the  law  in  administration  by  adjudication. 

A  case  which  involves  this  issue  is  Xoble  v.  Logging 
Railroad,  147  U.  S.  171  (1893) .  This  was  a  bill  in  equity 
by  the  railroad  to  enjoin  the  Secretary  from  revoking  an 
approval  of  its  maps.  It  appeared  in  the  case  that  the 
grants  had  been  duly  made.  Later  there  was  an  attempt 
to  retake  the  land  on  the  ground  that  the  railroad  was  not 
a  public  carrier.  The  fundamental  difficulty  in  the  case, 
one  sees,  is  that  the  grant  had  once  been  made;  so  that 
it  was  claimed  that  to  adjudicate  concerning  it  would  not 
be  action  concerning  public  land,  but  action  concerning 
private  land. 

The  opinion  of  Mr.  Justice  Brown  was  in  part  as 
follows :  In  the  present  case  it  is  charged  that  there  are 
certain  facts  which  are  strictly  jurisdictional,  the  exist- 
ence of  which  is  necessary  to  the  validity  of  the  proceed- 
ing, and  without  which  the  act  of  the  court  is  a  nullity. 
If  the  Land  Department  issues  a  patent  for  land  which 
has  already  been  granted  to  another  person,  the  act  is  not 
voidable  merely,  but  void.  The  proceeding  is  a  nullity 
and  its  invalidity  may  be  shown  in  a  collateral  attack. 
Upon  the  other  hand,  if  the  patent  be  for  land  which  the 
department  had  authority  to  convey,  but  if  it  was  im- 
posed upon  or  induced  by  false  representations  to  issue  a 
patent,  the  finding  of  the  department  cannot  be  collater- 
ally impeached. 

A  well  known  case  on  this  same  principle  is  In  re 
Passett,  142  U.  S.  479  (1892).  A  Collector  of  Customs 
seized  the  yacht  Conqueror,  alleging  that  the  vessel  was 

(365) 


§    135  ADMINISTRATIVE    LAW.  [Ch.    IS 

liable  to  duly  as  an  imported  article.  It  was  asserted  by 
the  owner  that  he  had  no  intention  of  bringing  the  yacht 
within  the  United  States.  He  claimed,  therefore,  that 
the  Collector  had  no  jurisdiction.  Now  the  Collector 
may  levy  proper  duties  upon  imported  articles;  may  he, 
therefore,  say  what  articles  are  imported  articles? 

The  court  by  Chief  Justice  Fuller  showed :  This  was 
not  a  question  which  the  collector  was  to  decide  within 
his  discretionary  powers.  Because  this  is  a  question  of 
jurisdiction,  no  appeal  is  provided.  That  is  no  process  to 
bring  up  for  review  the  question  of  whether  an  article 
is  imported  merchandise  or  not.  Nor  is  the  ascertain- 
ment of  that  fact  such  a  decision  as  lias  been  provided  for 
by  any  process  of  the  administration.104 

§  135.     Extent  of  jurisdiction. 

One  other  case  to  enforce  this  principle  of  the  extent 
of  the  jurisdiction  of  the  administration  is  Marquez  v. 
Frisbie,  101  U.  S.  173  (1879).  This  bill  was  filed  in  the 
state  court  by  the  complainant,  alleging  that,  having  the 
requisite  qualifications  of  a  pre-emptor,  he  had  settled 
upon  a  tract  of  the  public  land;  but  that  the  proper 
register  had  refused  to  receive  the  purchase  money  upon 
the  ground  that  the  Commissioners  had  ordered  the  sur- 

104  Administration  by  Adjudication. — Lawrence  v.  Caswell,  13 
How.  497;  Marquez  v.  Frisbie,  101  U.  S.  473;  Oelbermann  v.  Merritt, 
123  U.  S.  363;  Wisconsin  Cent.  R.  R.  v.  Porsythe,  159  U.  S.  61;  Clark 
v.  Herington,  186  U.  S.  210;  Ex  parte  Selma  R.  R.,  46  Ala.  423;  Ex 
parte  Bridge  Co.,  62  Ark.  461;  United  States  v.  Douglass,  19  D.  C.  99; 
Pensacola  R.  R.  v.  State,  25  Fla.  310;  Chicago,  etc..  R.  R.  v.  Atchison 
Co.  Com'rs,  54  Kan.  781;  People  v.  Dental  Examiners,  110  111.  180; 
Miller  v.  Horton,  152  Mass.  540;  Merrill  v.  Humphrey,  24  Mich.  170; 
State  v.  Chicago,  etc.,  R.  R.,  38  Minn.  281;  State  v.  Chicago,  etc.,  R. 
R.,  29  Neb.  412;  Stuart  v.  Palmer,  74  N.  Y.  183;  Bartlett  v.  Wilson, 
59  Vt.  23;  State  v.  Cheney,  45  W.  Va.  478. 

(366) 


Ch.    15]  ITS  JURISDICTION.  g    135 

veys  to  be  withheld.  .  The  defendant,  who  claimed  a  right 
to  pre-empt  under  later  proceedings,  demurred.  The 
question  thus  was  raised  whether  the  judicial  courts 
would  undertake  to  review  the  action  of  the  administra- 
tion. 

Mr.  Justice  Miller  said :  The  grounds  principally,  if 
not  conclusively,  relied  on  by  the  plaintiff  in  this  court 
are  (1)  that  the  Land  Department  mistook  the  law  of  the 
United  States  and  thereby  deprived  the  plaintiff  of  a 
vested  right,  and  (2)  that  their  decision  was  obtained  by 
fraud,  and,  therefore,  ought  to  be  set  aside.  We  have 
repeatedly  held  that  the  courts  will  not  interfere  with  the 
officers  of  the  government  in  the  discharge  of  their  duties 
in  disposing  of  the  public  lands  either  by  injunction  or 
mandamus.  The  rule  which  governs  the  court  in  correct- 
ing errors  has  been  fully  stated.  It  is  idle  to  suppose  that 
the  expensive  machinery  of  a  court  of  equity  is  to  be  put 
in  operation  for  the  purpose  of  reviewing  and  reversing 
the  judgment  of  the  tribunal  by  whom  that  question  of 
law  is  to  be  decided. 

The  latest  case  goes  almost  to  that  extreme.  Publica- 
tion Company  v.  Payne,  30  Wash.  Law  Rep.  339  (1902). 
This  was  an  application  for  a  writ  of  mandamus  against 
the  Postmaster-General.  The  Postmaster-General  had 
prescribed  in  a  regulation  that  second  class  matter  should 
include  only  such  as  consisted  of  current  news  or  mis- 
cellaneous literature  matter.  Upon  the  strength  of  this 
regulation  a  collection  of  railway  time  tallies  was  ex- 
cluded from  second  class  matter.  The  publishers  claim 
that  the  regulation  was  invalid. 

An  extract  from  the  opinion  of  Mr.  Justice  Bradley 
follows:  Is  this  amendment  of  the  postal  regulations  in- 
consistent with  law?     It  is  clearly  beyond  the  power  of 

(307) 


§   136  ADMINISTRATIVE    LAW.  [Ch.    15 

the  Postmaster-General  to  prescribe.  Periodical  publi- 
cations by  this  regulation  must  not  only  conform  to  the 
statutory  characteristic  of  second  class  mail  matter, 
but  further  requisites  are  prescribed.  Obviously  "in- 
formation of  a  public  character''  is  much  broader  than 
"current  news."  It  is  then  a  narrowing  and  restricting 
of  the  terms  of  the  statute.  The  court  is  .bound  to  con- 
sider that  the  legislature  never  contemplated  such  an  ad- 
dition to  the  statute.105 

§  136.     Conclusion. 

These  are  the  general  principles :  That  neither  in  its 
executive  processes,  nor  in  its  legislative  processes,  nor 
in  its  judicial  processes  can  the  administration  act  be- 
yond its  jurisdiction.  Beyond  jurisdiction  every  act 
done  in  the  course  of  administration  must  be  void.  All 
that  is  allowed  to  the  administration  is  action  within  the 
scope  of  its  authority.  The  distinction  is  this :  The  in- 
ternal law  of  the  administration  is  concerned  with  the 

los  Extext  of  JURISDICTION. — Litchfield  v.  Register  &  Receiver,  9 
Wall.  575;  Johnson  v.  Towsley,  13  Wall.  72;  In  re  Fassett,  142  U.  S. 
479;  Nishimuna  Ekiu  v.  United  States,  142  U.  S.  660;  Noble  v.  Log- 
ging R.  R„  147  U.  S.  171;  McCormick  v.  Hayes,  159  U.  S.  342;  Menot- 
ti  v.  Dillon,  167  U.  S.  721;  Japanese  Immigrant  Case,  189  U.  S.  86; 
United  States  v.  Garlinger,  169  U.  S.  321;  United  States  v.  Lee  Huen, 
118  Fed.  442;  United  States  v.  Three  Barrels,  77  Fed.  964;  Meads  v. 
United  States,  81  Fed.  684;  Woolfork  v.  Buckner,  60  Ark.  163;  New 
York,  etc.,  R.  Co.'s  Appeal,  62  Conn.  535;  Pensacola  R.  R.  v.  State, 
25  Fla.  310;  Brown  v.  Porter,  37  Ind.  206;  McCormick  v.  Burt,  95  111. 
263;  Chicago,  etc.,  R.  R.  v.  Atchison  Co.  Com'rs,  54  Kan.  781;  Lowell 
v.  Commissioners,  152  Mass.  375;  State  v.  Chicago,  etc.,  R.  R.,  38 
Minn.  281;  Newman  v.  Elam,  30  Miss.  507;  State  v.  Commissioners, 
12  Neb.  6;  United  Lines  Tel.  Co.  v.  Grant.  137  N.  Y.  7;  Long  v.  Com- 
missioners, 76  N.  C.  273;  Sproat  v.  Durland,  2  Okl.  52;  American 
Pavement  Co.  v.  Wagner,  139  Pa.  623. 

(368) 


Ch.    15J  ITS  JURISDICTION.  e    13(> 

action  of  the  administration  within  its  jurisdiction;  the 
external  law  of  the  administration  is  concerned  with  the 
limitation  upon  the  authority  of  the  administration. 
These  make  up  the  whole  of  the  law  governing  adminis- 
tration. 


A  dm.  Law — 24. 


(369) 


APPENDIX. 


APPENDIX  A. 


REGULATIONS  RELATING  TO  ARMY  AND  NAVY 

PENSIONS    FOR   THE   GUIDANCE    OF 

CLAIMANTS  AND  ATTORNEYS. 

All  declarations  and  evidence  must  be  executed  in  ac- 
cordance with  the  provisions  of  the  act  of  Congress  ap- 
proved July  20,  1892. 

INVALID. 

Blank  forms  for  a  declaration  will  be  furnished  to 
claimants  upon  application  therefor,  but  will  not  be  fur- 
nished to  attorneys  and  claim  agents. 

The  declaration  should  set  forth  the  company  and  reg- 
iment in  which  the  applicant  served,  the  name  of  the 
commanding  officer  of  the  company  or  organization,  and 
the  dates  of  enlistment  and  discharge.  In  Navy  cases 
the  vessel  upon  which  claimant  served  should  be  stated. 
If  the  claim  is  made  on  account  of  a  wound  or  injury, 
the  declaration  should  set  forth  the  nature  and  locality 
of  the  wound  or  injury,  the  time  when,  the  place  where, 
and  the  circumstances  under  which  il  was  received,  and 
the  duty  upon  which  the  applicant  was  engaged. 

If  the  wound  or  injury  was  accidental,  the  applicant 
should  state  whether  it  happened  through  his  own  agency 
or  that  of  other  persons,  and  he  should  minutely  detail 
the  circumstances  under  which  it  was  received. 

If  the  claim  is  made  on  accounl  of  disability  from  dis- 
ease, the  applicant  should  state  in  his  declaration  when 


374  ADMINISTRATIVE    LAW. 

the  disease  first  appeared,  the  place  where  he  was  when 
it  appeared,  and  the  duty  upon  which  he  was  at  the  time 
engaged.  He  should  also  detail  the  circumstances  of 
exposure  to  the  causes  which,  in  his  opinion,  produced 
the  disease.  Whether  the  application  be  made  on  ac- 
count of  disability  from  injury  or  disease  the  claimant 
should  state  the  names,  numbers,  and  localities  of  all 
hospitals  in  which  he  received  medical  or  surgical  treat- 
ment, giving  the  dates  of  his  admission  thereto  as  cor- 
rectly as  he  may  be  able. 

The  applicant  should  state  whether  he  was  in  the  mil- 
itary or  naval  service  prior  to  or  after  the  term  of  service 
in  which  his  disability  originated. 

The  applicant  should  state  his  postoftice  address.  In 
cities,  the  street  and  number  of  his  residence  should  be 
given. 

The  identity  of  the  applicant  must  be  shown  by  the 
testimony  of  two  credible  witnesses,  who  must  appear 
with  him  before  the  officer  by  whom  the  declaration  may 
be  taken. 

NATURE  OF  THE  EVIDENCE  REQUIRED  TO  SUSTAIN  A  CLAIM 
FOR    INVALID    PENSION. 

As  soon  as  practicable  after  the  receipt  of  a  claim  for 
pension,  application  will  be  made  by  this  office,  in  Army 
cases,  to  the  Adjutant-General  and  the  Surgeon-General 
of  the  Army,  for  a  report  of  the  applicant's  service  and 
evidence  in  regard  to  the  disability  alleged  which  may 
appear  upon  the  rolls  and  other  records  in  the  possession 
of  those  officers.  In  Navy  cases  application  for  such 
evidence  will  be  made  to  the  proper  Bureaus  of  the  Navy 
1  department. 

When  the  records  of  the  War  and  Navy  Departments 
do  not  furnish  satisfactory  evidence  that  the  disability 


APPENDIX.  375 

on  account  of  which  the  claim  is  made  originated  in  the 
service  of  the  United  States  and  in  the  line  of  duty,  the 
claimant  will  be  required  to  furnish  such  evidence,  in 
accordance  with  the  instructions  hereinafter  given,  com- 
pliance with  which  must  be  full  and  definite;  and  if  the 
disability  results  from  a  wound  or  other  injury,  the  na- 
ture and  location  of  the  wound  or  injury,  the  time  when, 
the  place  where,  and  the  manner  in  which  it  was  received, 
whether  in  battle  or  otherwise,  should  be  shown  by  the 
affidavit  of  some  one  who  was  a  commissioned  officer  and 
had  personal  knowledge  of  the  facts. 

If  the  person  called  upon  to  give  evidence  is  still  in  the 
service  as  a  commissioned  officer,  his  certificate  will  be 
accepted  in  lieu  of  his  affidavit. 

If  there  is  no  record  of  the  disability  claimed,  the 
applicant  will  be  called  on  to  furnish  the  testimony  of 
the  surgeon  by  whom  he  was  treated,  showing  the  loca- 
tion and  nature  of  the  wound  or  injury  and  the  circum- 
stances under  which  it  was  received.  If  the  disability 
arises  from  disease,  the  testimony  of  the  person  who 
was  surgeon  or  assistant  surgeon  of  the  regiment  to 
which  the  applicant  belonged,  or  the  vessel  on  which 
he  served,  should,  if  possible,  be  furnished,  showing  the 
name  or  nature  of  the  disease,  the  time  when,  the  place 
where  it  was  contracted,  and  the  circumstances  of  ex- 
posure to  the  causes  which,  in  his  opinion,  produced  the 
same. 

The  surgeon  should  state  whether,  in  his  opinion,  the 
habits  of  the  applicant  had  any  agency  in  the  production 
of  the  disease. 

In  any  claim,  whether  made  on  account  of  injury  or 
disease,  if  it  be  shown  that  the  testimony  of  a  surgeon, 
assistant  surgeon,  or  other  commissioned  officer  cannot 


37b  ADMINISTRATIVE    LAW. 

be  produced  as  evidence  of  the  origin  .of  the  disability  al- 
leged, the  testimony  of  other  persons  having  personal 
knowledge  of  the  facts  will  be  considered. 

In  a  claim  on  account  of  disability  from  disease,  he 
must  furnish  the  testimony  of  the  physicians  who  have 
attended  him  since  the  date  of  discharge,  explicitly  set- 
ting forth  the  history  of  the  disease  and  disability  since 
its  first  appearance.  It  is  especially  important  that  the 
physician  who  first  attended  the  applicant  after  his  dis- 
charge should  state  the  date  at  which  his  attendance 
commenced  and  his  condition  at  that  time.  If  it  should 
not  be  possible  for  the  applicant  to  show  the  condition 
of  his  health  during  the  whole  period  since  the  date  of 
his  discharge  by  the  testimony  of  physicians,  the  cause 
of  his  inability  to  do  so  should  be  stated  by  him  under 
oath.  The  testimony  of  other  persons  on  this  point  may 
then  be  presented.  The  statement  of  the  witnesses  in  re- 
gard to  the  manner  in  which  the  applicant  was  affected 
should  be  full  and  definite,  and  they  should  state  how 
they  obtained  a  knowledge  of  the  facts  stated  by  them. 

A  pensioner  who  may  deem  himself  entitled  to  an 
increase  of  pension  should  file  a  declaration  setting  forth 
the  ground  upon  which  he  claims  such  increase. 

CLAIMS   FOR    RENEWAL   OF    PENSIONS. 

Applications  for  renewal  of  pension  must  be  made 
to  the  Commissioner  by  a  declaration  executed  as  in  orig- 
inal claims,  setting  forth  that  the  cause  for  which  pen- 
sion was  allowed  still  continues. 

In  cases  of  unclaimed  pensions,  evidence  must  be  filed 
satisfactorily  accounting  for  the  failure  to  claim  such 
pension;  and,  in  invalid  claims,  medical  evidence  show- 
ing the  continuance  of  the  disability. 


APPENDIX.  377 

Blank  forms  of  declaration  will  be  furnished  by  this 
office  at  the  request  of  the  claimant,  but  will  not  be  fur- 
nished to  agents  or  attorneys. 

CLAIMS    OF    WIDOWS    AND    CHILDREN. 
THE    DECLARATION. 

The  blank  form  of  declaration,  with  the  accompanying 
notes,  which  is  furnished  by  this  office  upon  the  re- 
quest of  a  claimant,  sufficiently  indicates  the  facts  which 
should  be  stated  by  the  widow  or  guardian. 

EVIDENCE. 

The  facts  relating  to  the  cause  of  the  soldier's  death  on 
account  of  whom  the  pension  is  claimed,  including  his 
lasi  illness  and  date  and  place  of  death,  should  be  set 
forth  fully  and  in  detail,  and  should  be  proven  by  tin1 
physicians  who  attended  him  during  his  illness;  but 
Avhen  that  is  impossible,  the  testimony  of  other  persons 
who  are  acquainted  with  the  circumstances  may  be  fur- 
nished. 

PROOF   OF   MARRIAGE  IX   WIDOWS'   CLAIMS. 

The  marriage  of  the  applicant  to  the  person  on  account 
of  whose  service  and  death  the  claim  is  made  should  be 
shown — 

i  1  )  By  a  duly  verified  copy  of  a  church  or  other  public 
record ;  or 

i  2  i  By  the  affidavit  of  the  clergyman  or  magistrate 
who  officiated;  or 

(3)  By  the  testimony  of  two  or  more  eye  witnesses  to 
the  ceremony;  or 

(4)  By  a  duly  verified  copy  of  I  lie  church  record  of 
baptism  of  the  children ;  or 


378  ADMINISTRATIVE    LAW. 

(5)  By  the  testimony  of  two  or  more  witnesses  who 
know  that  the  parties  lived  together  as  husband  and 
wife,  and  who  will  state  how  long,  within  their  knowl- 
edge, such  cohabitation  continued. 

Special  provision,  however,  is  made  by  section  4705 
of  the  Revised  Statutes  in  regard  to  the  character  of  the 
evidence  which  shall  be  required  in  the  claims  of  widows 
and  children  of  colored  and  Indian  soldiers  and  sailors. 

PROOF  OF   THE   DATES   OF   BIRTH   OF   CHILDREN. 

The  dates  of  birth  of  children  should  be  proved — 

(1)  By  a  duly  verified  copy  of  the  church  record  of 
baptism  or  other  public  record;  or 

i  2  I  By  the  affidavit  of  the  physician  who  attended  the 
mother ;  or 

(3)  By  the  testimony  of  persons  who  were  present  ;ii 
the  births,  who  should  state  how  they  are  able  to  testily 
to  the  precise  dates. 

If  any  child  of  the  person  on  whose  account  the  claim 
is  made  died  after  the  date  at  which  the  widow's  pension 
will  commence,  the  date  of  the  death  must  be  shown. 

CLAIMS   ON    BEHALF   OE    MINOR   CHILDREN. 

In  claims  on  behalf  of  minor  children  the  guardian 
must  furnish  proof  upon  the  following  points : 

(1)  A  copy  of  his  letters  of  guardianship,  bearing  the 
seal  of  the  court  making  the  appointment,  together  with 
the  certificate  of  the  court  that  such  appointment  has 
not  been  revoked;  which  certificate  should  also  state  the 
amount  of  the  guardian's  bond. 

(2)  The  cause  and  date  of  the  father's  death,  the 
marriage  of  the  parents,  and  the  dates  of  birth  of  the 
children  must  be  proved.     When,  however,  satisfactory 


APPENDIX.  379 

proof  upon  these  points  has  been  furnished  in  the  claim 
of  the  widow,  it  will  not  again  be  required  in  the  claim 
on  behalf  of  the  minors. 

(3)  If  the  mother  of  the  children  is  dead,  the  date  of 
her  death  must  be  proved.  If  she  remarried,  her  remar- 
riage must  be  proved  iu  the  same  manner  that  her  mar- 
riage to  the  father  of  the  children  is  required  to  be 
proved.  If  the  claim  is  made  on  account  of  the  widow 
having  abandoned  the  children,  or  on  account  of  her 
unfitness  to  have  custody  of  them,  the  abandonment  or 
unfitness  can  be  shown  by  the  certificate  of  the  courl  hav- 
ing probate  jurisdiction  or  upon  the  presentation  of  sat- 
isfactory evidence  thereof  to  the  Commissioner  of  Pen- 
sions. 

(4)  If  the  mother  of  the  children  died  before  the 
father,  it  must  be  shown  whether  he  again  married. 

(5)  It  must  be  shown  whether  the  father  left  any 
other  pensionable  child  than  those  for  whose  benefit  the 
claim  is  made;  and,  if  so,  why  such  child  is  not  embraced 
in  the  application.  A  guardian  is  not  entitled  on  account 
of  a  child  which  died  prior  to  the  date  of  the  applical  ion. 

CLAIMS   OF    DEPENDENT    RELATIVES. 
DEPENDENT    MOTHERS. 

A  mother  must  show  her  relationship,  the  date  and 
<;iuse  of  the  son's  (hath,  and  whether  he  left  a  widow  or 
minor  children  surviving,  and  her  dependence  upon  him 
for  support  at  the  time  of  his  death. 

In  proof  of  dependence  it  must  be  shown  that  previous 
to  the  date  of  the  said  son's  decease  her  husband  had 
died,  or  that  lie  had  permanently  abandoned  her  sup- 
port, or  that  on  account  of  disability  from  injury  or  dis- 
ease he  was  unable   to  support  her.      If  the  husband   is 


380  ADMINISTRATIVE    LAW. 

dead,  the  date  of  his  death  must  be  proved.  If  he  aban- 
doned the  support  of  his  family,  the  date  of  such  aban- 
donment and  all  the  facts  of  the  case,  showing  whether 
he  ever  returned  or  ever  afterward  contributed  to  the 
support  of  the  claimant,  must  be  fully  set  forth.  If  he 
was  disabled,  the  nature  and  cause  of  the  disability  and 
when  and  to  what  extent  it  rendered  him  unable  to  sup- 
port the  claimant  must  be  shown  by  the  testimony  of  his 
physician.  The  extent  of  his  disability  during  the  pe- 
riod from  the  son's  death  to  the  present  time  should  also 
be  shown. 

The  value  of  the  property  of  the  claimant  and  her  hus- 
band, the  income  which  they  derived  therefrom,  and  the 
other  means  of  support  possessed  by  them  while  she  was 
receiving  the  contributions  of  her  said  son,  and  from 
that  time  to  the  present,  should  be  shown  by  the  testi- 
mony of  credible  and  disinterested  witnesses,  who  must 
state  how  they  know  the  facts.  The  value  of  property 
assessed  for  taxation  may  be  shown  by  the  testimony  of 
the  officer  having  possession  of  the  records  relating  there- 
to. The  true  as  compared  with  the  assessed  value  should 
be  stated. 

It  must  be  shown  to  what  extent,  for  what  period,  and 
in  what  manner  her  said  son  contributed  to  her  support, 
by  the  testimony  of  persons  for  whom  the  son  labored,  to 
whom  he  paid  rent,  of  whom  he  purchased  groceries, 
fuel,  clothing,  or  other  necessary  articles  for  her  use,  or 
of  those  who  otherwise  had  a  knowledge  of  the  contribu- 
tions of  the  son,  and  who  must  state  how  they  obtained 
such  knowledge.  Any  letter  from  the  son  bearing  upon 
the  question  of  support  should  be  filed.  If  the  son,  in  any 
other  manner  than  by  actual  contributions,  acknowledg- 
ed his  obligation  to  support  his  mother,  or  was  by  law 
bound  to  such  support,  the  facts  should  be  shown. 


APPENDIX.  281 

DEPENDENT  FATH ERS. 

A  father  claiming  pension  on  account  of  the  death  of 
his  son,  upon  whom  he  was  dependent  for  support,  must 
prove — 

(1)  The  cause  and  date  of  his  son's  death;  that  said 
son  left  no  widow  or  minor  child  surviving  him ;  the 
cause  and  extent  of  his  disability  during  the  period  in 
which  the  son  contributed  to  his  support,  and  from  that 
time  to  the  present;  the  amount  of  his  property  and  all 
other  means  of  support  possessed  by  him  during  that 
period,  and  the  extent  of  his  dependence  upon  his  son  for 
support.  The  facts  of  the  case  in  these  respects  should  be 
shown  by  such  testimony  as  is  required  in  the  claim  of  a 
mother. 

(2)  The  date  of  his  marriage,  the  date  of  the  death 
of  the  mother,  and  the  date  of  birth  of  the  son  must  be 
proved. 

In  case  the  mother  applied  for  pension,  reference 
should  be  made  to  her  application,  and  the  number  of 
the  same  or  of  her  certificate  should  be  given.  Evidence 
upon  any  point  established  in  her  claim  will  not  again 
be  required. 

MINOR   BROTHERS  AND  SISTERS. 

The  claim  on  behalf  of  minor  brothers  and  sisters 
should  be  made  by  a  guardian  duly  appointed,  who  must 
furnish  the  evidence  of  his  or  her  authority  under  the  seal 
of  the  court  from  which  the  authority  was  obtained.  He 
must  prove  the  cause  and  date  of  the  death  of  the  brother 
on  whose  account  the  claim  is  made,  his  celibacy,  the 
dates  of  death  of  the  mother  and  father,  his  relationship 
to  the  persons  on  whose  behalf  the  claim  is  made,  the 
dates   of  their  births,  and    their  dependence  upon   the 


382  ADMINISTRATIVE    LAW. 

brother  for  support.  If  the  mother  or  father  applied 
for  pension,  the  number  of  his  or  her  application  or  of 
his  or  her  certificate  should  be  given.  Evidence  upon 
an}'  point  established  in  the  claim  of  the  mother  or  father 
will  not  again  be  required. 

In  the  administration  of  the  pension  laws  no  dis- 
tinction is  made  between  brothers  and  sisters  of  the  half 
blood  and  those  of  the  whole  blood. 

WITNESSES    AND    TESTIMONY. 

Evidence  executed  before  the  attorney  of  record  in  a 
claim  or  before  any  person  who  has  a  manifest  interest 
therein  will  not  be  considered.  All  certificates  of 
executing  officers  must  certify  that  they  have  no  interest 
in  the  claim. 

It  is  desirable  that  the  tacts  required  to  be  proved  in 
the  prosecution  of  a  claim  for  pension  should,  if  possible, 
be  shown  by  the  testimony  of  other  persons  than  near 
relatives  of  the  claimant. 

Every  fact  required  to  be  proved  should  be  shown  by 
the  best  evidence  obtainable.  Every  witness  should  state 
whether  he  has  any  interest,  direct  or  indirect,  in  the 
prosecution  of  the  claim  in  which  he  may  be  called  to 
testify,  and  give  his  postoffice  address. 

Witnesses  should  not  merely  confirm  the  statements 
of  other  parties,  but  they  should  give  a  detailed  state- 
ment of  the  facts  known  to  them  in  regard  to  the  matter 
concerning  which  they  may  testify,  and  they  should  state 
how  they  obtained  a  knowledge  of  such  facts.  The  of- 
ficer who  may  take  the  deposition  must  certify  as  to  his 
knowledge  of  the  credibility  of  the  witnesses,  and  must 
siate  how  such  knowledge  was  obtained.  If  they  sign  by 
mark,  he  must  certify  that  the  contents  of  their  deposi- 


APPENDIX.  333 

tions  were  fully  made  known  to  them  before  he  admin- 
istered the  oath. 

It  is  desirable  that  affidavits  should  be  free  from  inter- 
lineations and  erasures.  When  an  alteration  is  made  in 
an  affidavit,  or  an  addition  is  made  thereto,  it  must  ap- 
pear by  the  certificate  of  the  officer  who  administered 
the  oath  that  such  alteration  or  addition  was  made  with 
the  knowledge  and  sworn  consent  of  the  affiant. 

In  all  affidavits  from  surgeons  or  physicians  it  is  de- 
sirable that  that  portion  detailing  the  nature  of  the  dis- 
ability, dates  of  treatment,  and  death,  symptoms  and 
opinions  as  to  connection  between  diseases  or  injury  and 
disease,  should  he  in  the  handwriting  of  the  party  by 
whom  it  is  signed.  The  testimony  of  any  person  as  an 
expert  should  be  drawn  up  by  some  one  professionally 
competent  to  make  such  a  statement. 

The  official  certificates  of  judicial  officers  using  a  seal, 
or  of  commissioned  officers  of  the  Army  and  Navy  in 
actual  service,  will  be  accepted  without  affidavit;  but  all 
other  witnesses  must  testify  under  oath. 

COPIES  OR  ORIGINALS  OF  PAPERS. 

Private  papers  or  personal  mementos  filed  as  evi- 
dence in  claims  for  pension  become  a  part  of  the  record. 
Copies  of  same  or  originals  can  only  be  returned  within 
the  discretion  of  the  Commissioner  of  Pensions,  upon 
application  by  the  parties  properly  entitled  thereto. 

Certified  copies  of  declarations,  affidavits,  or  certifi- 
cates of  medical  examinations  on  file  in  claims  for  pen- 
sion can  only  be  furnished  upon  the  call  of  a  court  or 
department  wherein  the  same  are  to  be  used  as  evidence, 
under  certain  conditions. 


3s4  administrative  law. 

pensions  to  the  survivors  of  the  wars  prior  to  1861, 
and  to  their  widows. 

(1)  War  of  the  Revolution,  Service  Pensions. — 
(a)  Widows  of  soldiers  who  served  for  fourteen  days  or 
more,  or  were  in  any  battle  during  the  war,  are  entitled, 
provided  they  have  not  remarried,  to  eight  dollars  per 
month  from  March  9,  1878,  and  twelve  dollars  per  month 
from  March  19, 1886.  (b  )  Widows  of  E evolutionary  sol- 
diers who  in  their  lifetime  were  granted  pensions  are  en- 
titled, under  section  1743,  Revised  Statutes,  to  pension 
at  the  same  rate  as  was  paid  the  husband,  notwithstand- 
ing remarriage,  upon  proof  of  present  widowhood,  (c) 
There  is  no  law  granting  pensions  to  the  daughters  or 
other  descendants  of  soldiers  of  the  Revolution.  The 
daughters  of  Revolutionary  soldiers  who  are  now  draw- 
ing pensions  were  placed  on  the  pension  roll  by  special 
acts  of  Congress. 

(2)  War  of  1812,  Service  Pensions. —  (a)  Under  sec- 
tions 4730  to  4740,  Revised  Statutes,  soldiers  and  sailors 
who  served  for  sixty  days  or  more  in  this  war  and  were 
honorably  discharged,  or  who  were  personally  named  in 
any  resolution  of  Congress  for  specific  service  therein,  and 
the  widows  of  such  soldiers  and  sailors,  are  entitled  to 
eight  dollars  per  month  from  February  11,  1871,  upon 
proof  by  all  applicants,  of  loyalty  to  the  United  States 
Government  during  the  war  of  the  rebellion,  and  by  wid- 
ow applicants  of  their  marriage  to  the  soldier  or  sailor 
prior  to  the  treaty  of  peace,  February  17, 1815.  ( b )  Un- 
der the  act  of  March  9,  1878,  soldiers  and  sailors  who 
served  fourteen  days  or  more,  or  were  in  any  battle  dur- 
ing the  war,  and  were  honorably  discharged,  and  the  wid- 
ows of  such  soldiers  and  sailors,  irrespective  of  the  date 
of  marriage,  are  entitled  to  eight  dollars  per  month  from 


APPENDIX.  385 

March  9,  1878.  Under  the  act  of  March  19,  1886,  widow 
pensioners  mentioned  in  this  paragraph  are  entitled  to 
twelve  dollars  per  month  from  that  date,  (c)  There  is 
no  law  granting'  service  pension  to  the  descendants  of  sol- 
diers or  sailors  of  the  War  of  1812,  nor  increase  to  the 
soldier  or  sailor  himself  on  account  of  disability,  age, 
or  infirmity.  The  rate  of  pension  does  not  vary  with 
the  rank  of  the  soldier  or  sailor,  nor  can  it  be  increased 
for  any  cause. 

(3)  Indian  Wars  from  1832  to  1842,  Service  Pen- 
sions.—  (a  i  The  act  of  July  27,  1892,  provides  pensions 
for  the  surviving  officers  and  enlisted  men,  including 
marines,  militia,  and  volunteers,  who  were  in  the  military 
or  naval  service  of  the  United  States  for  thirty  days  in 
the  Black  Hawk  war,  the  Creek  war,  the  Cherokee  dis- 
turbances, or  the  Florida  war  with  the  Seminole  In- 
dians, and  were  honorably  discharged;  or  who  were  per- 
sonally named  in  any  resolution  of  Congress  for  specific 
service  therein  ;  and  for  their  widows,  provided  they  have 
not  remarried.  All  pensions  under  this  act  are  fixed  at 
eight  dollars  per  month  irrespective  of  rank;  are  not 
subject  to  increase  for  any  cause ;  and  are  payable  from 
July  27, 1892  ;  but  the  pension  of  a  widow  whose  husband 
was  living  on  that  date  commences  from  the  day  of  his 
death,  (b  i  This  act  does  not  provide  pension  for  any  de- 
scendant of  the  soldier  or  sailor. 

(4)  Mexican"  War,  Service  Pensions. —  (a)  Under 
the  act  of  January  29,  1887,  officers  and  enlisted  men 
who  were  in  the  military  or  naval  service  of  the  United 
States  for  sixty  days  in  Mexico,  or  on  the  coasts  or  fron- 
tier  thereof,  or  en  route  (hereto,  or  who  were  in  a  battle, 
and  wore  honorably  discharged;  or  who  were  personally 
named  in  any  resolution  of  Congress  for  specific  service 

Adm.  Law — 25. 


386  ADMINISTRATIVE    LAW. 

therein,  are  entitled  to  pension  if  sixty-two  years  of  age; 
or,  if  not,  upon  proof  of  pensionable  disability  or  depend- 
ence, (b)  Widows  of  officers  and  enlisted  men  who 
served  as  above  are  entitled  to  pension  on  the  same  con- 
ditions as  to  age  or  dependence  as  apply  to  the  officer  or 
soldier;  but  disability  incurred  while  voluntarily  aiding 
or  abetting  the  late  rebellion  does  not  give  title  to  pen- 
sion, nor  are  am'  persons  entitled  thereto  while  under 
the  political  disabilities  imposed  by  the  fourteenth 
amendment  to  the  Constitution.  Pensions  under  this  act 
commence  on  January  29,  1887,  if  a  pensionable  condi- 
tion by  reason  of  age  or  dependence  then  existed ;  if  not, 
then  on  the  date  the  applicant  becomes  sixty-two  years 
of  age  or  dependent  within  the  meaning  of  the  law.  The 
rate  of  pension  is  eight  dollars  per  month  irrespective 
of  rank;  which  rate,  for  survivors  who  were  pensioners 
on  January  5,  1893,  may  be  increased  t<»  twelve  dollars 
under  the  act  of  that  date,  on  proof  that  the  pensioner  is 
wholly  disabled  for  manual  labor  and  in  such  destitute 
circumstances  that  eight  dollars  is  a  sum  insufficient  to 
provide  him  with  the  necessaries  of  life,  (c)  Widows' 
pensions  are  not  subject  to  increase,  nor  are  the  descend- 
ants of  survivors  entitled  to  service  pension. 

(5)  Navy  Service  Pensions. —  {a)  Under  sections 
4756  and  4757,  Revised  Statutes,  pensions  for  twenty 
years'  service  and  for  ten  years'  service,  are  allowed  by 
the  Secretary  of  the  Navy  to  enlisted  men  and  appointed 
petty  officers  who  have  not  been  discharged  for  mis- 
conduct. Pension  commences  on  the  date  of  filing  the 
claim  therefor  in  the  Navy  Department,  and,  for  twenty 
years'  service,  amounts  to  one-half  the  monthly  pay  of  the 
applicant's  rating  at  his  discharge;  for  ten  years'  service, 
the  pension  cannot  exceed  the  rate  for  total  disability. 


APPENDIX.  387 

and  is  fixed,  as  is  also  its  duration,  by  a  board  of  naval 
officers.  The  application  should  be  addressed  to  the  Sec- 
retary of  the  Navy,  and  all  subsequent  communications 
to  the  Chief  of  the  Bureau  of  Navigation,  Navy  Depart- 
ment, Washington,  1).  C.  {!>)  Pensions  arc  not  granted 
for  a  service  of  less  than  ten  years  except  as  provided  in 
paragraphs  2,  3,  and  4. 

(6)  Pensions  for  Disability  on  Death  Due  to  Serv- 
ice Prior  to  March  4,  18(31. —  (a)  Soldiers  who  were 
wounded  or  injured  or  who  contracted  disease  in  the  line 
of  duty  are  entitled  to  pension  corresponding  in  rate  to 
the  degree  of  disability  incurred  in  service.  Persons  in 
the  naval  service  are  entitled  to  a  like  pension  under  the 
same  conditions,  executing  that  no  pension  may  be  grant- 
ed to  an  engineer,  a  fireman,  or  a  coal  heaver  for  disabili- 
ty incurred  prior  to  August  31,  1812.  (b)  The  widows, 
or  children  under  sixteen  years  of  age,  of  soldiers  who 
served  prior  to  March  4,  1861,  are  entitled  to  pension  if 
the  soldier's  death  was  due  to  causes  originating  in  time 
of  actual  war,  and  not  otherwise,  (c)  The  widows,  or 
children  under  sixteen,  of  sailors  who  served  prior  to 
March  4,  1861,  are  entitled  to  pension  only  when  the 
death  occurred  in  the  service  and  in  the  line  of  duty. 
Pensions  mentioned  in  this  paragraph,  if  not  applied  for 
within  three  years  from  the  discharge  or  death  of  the 
person  on  whose  account  the  right  to  pension  exists,  or 
within  three  years  of  the  termination  of  a  pension  pre- 
viously granted  on  account  of  the  service  and  death  of 
such  person,  commence  from  the  date  of  tiling,  by  the 
person  prosecuting  the  claim,  the  last  paper  requisite  to 
establish  it.  (d)  There  is  no  provision  of  law  allowing 
pensions  to  the  parents,  brothers,  or  sisters  of  persons 
who  rendered  military  or  naval  service  prior  to  March 
4.  L861. 


388  ADMINISTRATIVE    LAW. 

( 7 )  Bounty  Land —  ( a )  Service,  to  give  title  to  boun- 
ty land,  must  have  been  for  at  least  fourteen  days  or  in  a 
battle  prior  to  March  3,  1855;  and,  if  in  the  Navy  or 
Regular  Army,  must  have  been  in  some  war  in  which  the 
United  States  Government  was  engaged,  (b)  Inquiries 
relative  to  the  assignment  of  bounty  land  warrants  and 
to  homestead  lands  for  services  during  the  war  of  the 
rebellion  should  be  addressed  to  the  Commissioner  of  the 
Genera]  Land  Office,  Interior  Department. 

(8)  Miscellaneous. —  (a)  Applications  for  reim- 
bursement slit  add  be  filed  with  the  Auditor  for  the  In- 
terior Department,  Treasury  Department.  (b)  Com- 
munications relative  to  back  pay,  extra  pay,  and  bounty 
in  money  for  military  service  should  be  addressed  to  the 
Auditor  for  the  War  Department;  in  regard  to  bounty, 
extra  pay,  or  prize  money  for  naval  service,  to  the  Audi- 
tor for  the  Navy  Department,  (c)  When  a  certificate  of 
service  in  lieu  of  a  lost  discharge  is  desired,  application 
should  be  made  to  the  Adjutant-General,  U.  S.  Army, 
War  Department,  if  the  service  was  in  the  Regular  Army; 
to  the  Chief  of  Record  and  Tension  Office,  War  Depart- 
ment, if  the  service  was  in  a  volunteer  organization, 
and  to  the  Chief  of  the  Bureau  of  Navigation,  Navy  De- 
partment, if  the  service  was  in  the  Navy.  ( <1)  Copies 
only  of  discharges  are  furnished  by  this  Bureau  when  the 
originals  were  filed  in  claims  made  on  account  of  service 
rendered  prior  to  March  4.  1861,  and  no  such  copy  will 
be  furnished  for  use  in  claims  against  the  Government. 
(e)  Remarriage  after  the  soldier's  death  (except  in  the 
case  of  certain  widows  referred  to  in  (b)  of  paragraph 
1  i  and  prior  to  the  passage  of  an  act  taking  effect  from 
the  date  of  its  approval  deprives  the  widow  of  the  benefits 
of  such  act.    In  the  case  of  remarriage  subsequent  to  the 


APPENDIX.  389 

approval  of  such  act,  pension  may  be  paid  from  the  date 
of  approval,  or  from  the  date  of  the  soldier's  death  if 
after  approval,  to  the  date  of  remarriage. 

[ACT  OF  JUNE  27.   1890.] 

All  pensions  under  this  act  will  commence  from  the 
date  of  filing  the  formal  application  (after  the  passage 
of  the  act)  in  the  Pension  Bureau. 

No  application  for  pension  under  this  act  will  be  good 
unless  filed  in  the  Pension  Bureau  on  or  after  June  27, 
1890  (date  of  the  act),  or  if  not  in  the  form,  substan- 
Iy,  prescribed  by  the  Secretary. 

Discharge  certificate  need  not  be  filed  until  called  for. 

The  rates  of  this  law  are  not  affected  by  the  rank  of 
the  soldier. 

This  act  provides  the  following  rates:  For  dependent 
father  or  mother,  $12.  The  widow.  $8,  and  $2  addi- 
tional for  each  child  of  soldier  under  sixteen  years;  and 
if  the  widow  dies,  the  child  or  children  can  draw  such 
pension.  The  soldier  is  entitled  to  any  rate  from  |6  to 
$12,  according  to  inability  to  earn  a  support. 

A  pensioner  under  existing  laws  may  apply  under  this 
one,  or  a  pensioner  under  this  one  may  apply  under  other 
laws,  but  can  draw  only  one  pension  at  the  same  time. 

This  law  requires  in  a  soldier's  ease: 

(1)  An  honorable  < lix<-li a )■</<■ . 

(2)  That  he  served  at  least  ninety  days. 

(3)  A  permanent  physical  or  mental  inability  to  earn 
a  support,  but  not  due  to  vicious  habits.  (It  need  not 
have  originated  in  the  service.) 

In   case  of  a   widow : 

(1)    That  the  soldier  served  at  leasl   ninety  days. 

i  2  i   That  lie  was  honorably  discharged. 


390  ADMINISTRATIVE    LAW. 

(3)  Proof  of  death;  but  it  need  not  have  been  the 
result  of  his  army  service. 

(4)  That  the  widow  is  "without  other  means  of  sup- 
port than  her  daily  labor." 

(5)  That  she  married  soldier  prior  to  June  27,  1890, 
date  of  the  act. 

In  dependent  parents'  case: 

(1)  That  the  soldier  died  of  a  wound,  injury,  or  dis- 
ease which  under  prior  laws  would  have  given  him  a 
pension. 

(2)  That  he  left  no  wife  or  minor  child. 

(3)  That  mother  or  father  is  at  present  dependent  on 
her  or  on  his  own  manual  labor,  being  "without  other 
present  means  of  support  than  their  own  manual  labor  or 
the  contributions  of  others  not  legally  bound  for  their 
support."  The  benefits  of  the  first  section  of  the  act 
of  June  27,  1890,  are  not  confined  to  the  parents  of  those 
who  served  in  the  war  of  the  rebellion,  but  are  extended 
to  all  parents  where  pensionable  dependence  has  arisen 
on  account  of  the  death  of  a  son  who  served  since  said  war 
in  behalf  of  the  United  States. 

(4i  That  in  ease  a  minor  child  is  insane,  idiotic,  or 
otherwise  permanently  helpless  the  pension  shall  con- 
tinue during  the  life  of  said  child  or  during  the  period  of 
such  disability,  and  this  proviso  shall  apply  to  all  pen- 
sions heretofore  granted  or  hereafter  to  be  granted  under 
this  or  any  former  statute,  and  such  pension  shall  com- 
mence from  the  date  of  application  therefor  after  the 
passage  of  this  act. 

The  rules  and  regulations  of  the  Department  will  gov- 
ern all  applicants  and  attorneys. 

No  contract  for  attorney's  fee  shall  provide  for  a  sum 


APPENDIX.  391 

greater  than  $10,  but  in  the  absence  of  a  contract  the 
attorney's  fee  shall  be  $10. 

H.  Clay  Evans, 
Commissioner  of  Pensions. 

The  foregoing  rules  and  regulations,  with  the  forms 
here  following,  are  adopted  and  approved. 

E.  A.  Hitchcock, 

Secretary  of  the  Interior. 


APPENDIX   B. 

RULES  OF  PRACTICE  IN  CASES  BEFORE  THE 
ACCOUNTING  OFFICERS  OF  THE  UNITED 
STATES  IN  THE  DIVISION  OF  THE  COMP- 
TROLLER. 

I.   REGULATIONS  GOVERNING  ATTORNEYS  AND  AGENTS 
PRACTICING  BEFORE  THE  TREASURY  DEPARTMENT. 

The  act  of  July  7,  1884  (23  Stat.,  258),  making  appro- 
priations to  supply  deficiencies  in  appropriations  for  the 
fiscal  year  ending  June  thirtieth,  eighteen  hundred  and 
eighty-four,  and  for  prior  years,  provides  "That  the 
Secretary  of  the  Treasury  may  prescribe  rules  and  regu- 
lations governing  the  recognition  of  agents,  attorneys, 
or  other  persons  representing  claimants  before  his  De- 
partment, and  may  require  of  such  persons,  agents,  and 
attorneys,  before  being  recognized  as  representatives  of 
claimants,  that  they  shall  show  that  they  are  of  good 
character  and  in  good  repute,  possessed  of  the  necessary 
qualifications  to  enable  them  to  render  such  claimants 
valuable  service,  and  otherwise  competent  to  advise  and 
assist  such  claimants  in  the  presentation  of  their  cases. 
And  such  Secretary  may,  after  due  notice  and  opportuni- 
ty for  hearing,  suspend  and  disbar  from  further  practice 
before  his  Department  any  such  person,  agent,  or  attor- 
ney, shown  to  be  incompetent,  disreputable,  or  who  re- 


APPENDIX.  393 

fuses  To  comply  with  the  said  rules  and  regulations,  or 
who  shall  wiili  intenl  to  defraud,  in  any  manner  willfully 
and  knowingly  deceive,  mislead,  or  threaten  any  claim- 
ant or  prospective  claimant,  by  word,  circular,  letter,  or 
by  advertisement." 

In  accordance  therewith,  the  following  rules  and  regu- 
lations are  established  by  the  Secretary  of  the  Treasury: 

1.  A  list  of  all  persons  entitled  to  practice  as  attorneys 
or  agents  before  the  Treasury  Department  will  be  kept 
in  the  office  of  the  Secretary  of  the  Treasury.  On  this 
list  may  be  placed  the  names  of  members  of  the  bar  in 
good  standing,  but  the  Secretary  of  the  Treasury  may 
require  from  any  such  member  evidence  that  he  is  in  good 
standing  at  the  bar. 

2.  An  agent  before  being  enrolled  may  be  required  to 
file  a  certificate  of  a  judge  of  a  United  States,  State,  or 
Territorial  court,  or  a  United  States  district  attorney, 
that  the  agent  is  of  good  moral  character,  and  competent 
to  render  claimants  valuable  service,  and  to  advise  and 
to  assist  them  in  the  presentation  of  their  claims. 

3.  No  attorney  or  agent  now  debarred  from  practice 
in  this  department,  or  any  other  of  the  Executive  Depart- 
ments, will  be  placed  upon  said  list  until  the  charges 
upon  which  he  was  so  debarred  shall  be  removed  or 
satisfactorily  answered. 

4.  The  head  of  any  Bureau  may  require  an  attorney  or 
agent  to  present  satisfactory  evidence  thai  the  claimant 
has  authorized  him  to  prosecute  the  claim,  but  no  draft 
will  be  delivered  to  such  attorney  or  agent,  unless  lie  tiles 
a  power  of  attorney,  duly  witnessed  and  acknowledged, 
expressly  authorizing  him  to  receive  if. 

5.  The  revocation  of ;!  power  of  attorney,  or  other  au- 
thority to  prosecute  ;i  claim,  by  ;i  claimant  or  his  legal 


394  ADMINISTRATIVE    LAW. 

representatives,  will  not  be  recognized,  unless  by  decision 
to  that  effect  by  the  proper  accounting  officer.  But  in 
cases  of  suspended  claims,  any  agent  or  attorney  who  has 
failed,  or  shall  hereafter  fail,  to  take  action  thereon 
within  three  months  after  the  suspension  of  the  claim, 
shall  be  deemed  to  have  abandoned  such  claim,  and  the 
right  of  the  claimant  to  employ  another  attorney  shall 
be  absolute. 

6.  No  agent  or  attorney  who  appears  by  substitution 
filed  after  these  regulations  go  into  force  will  be  recog- 
nized, unless  by  written  consent  of  the  claimant  thereto, 
dated  after  the  date  of  the  substitution,  and  naming  the 
person  substituted. 

7.  No  power  of  attorney  tiled  after  the  adjustment  of 
a  claim  or  account  by  the  accounting  officers  will  be 
recognized,  unless  it  shows  that  the  claimant  was  fully 
cognizant  when  he  executed  it  of  the  adjustment  and  of 
the  balance  found  due  him. 

8.  When  a  firm  engaged  in  prosecuting  claims  shall  be 
dissolved,  or  when  persons  associated  as  attorneys  in  a 
power  of  attorney  shall  contest  the  right  of  either  to 
receive  a  draft,  the  members  or  survivors  of  such  firm, 
or  the  associates  in  such  power  of  attorney,  must  file  with 
the  Secretary  of  the  Treasury  an  agreement  showing 
which  of  such  members,  survivors,  or  associates  may  con- 
tinue to  prosecute  the  claims,  or  may  receive  a  draft; 
otherwise,  only  the  claimant  will  be  recognized;  and  in 
no  case  will  a  final  settlement  of  the  account,  or  any 
steps  towards  the  transmission  of  a  draft  to  the  claimant, 
be  delayed  more  than  sixty  days  by  reason  of  the  nonfiling 
of  such  agreement. 

9.  If  a  head  of  a  Bureau  has  reason  to  believe,  or  if 
complaint  be  made  to  him,  that  any  attorney  or  agent 


APPENDIX.  395 

is  guilty  of  any  of  the  offenses  set  our  in  the  above  act, 
or  of  any  violation  of  these  rules,  he  shall  report  the 
case  forthwith  to  the  Secretary  of  the  Treasury.  The 
Secretary  of  the  Treasury  will  then  mail  to  the  usual 
address  of  such  attorney  or  agent  notice  of  the  charges 
preferred  against  him,  informing  him  that  they  will  be 
investigated  at  the  time  stated  in  the  notice,  which  time 
in  no  case  shall  be  less  than  thirty  days  from  the  date 
of  the  notice.  If  on  the  investigation  it  shall  appear 
that  the  charge  is  sustained,  the  Secretary  of  the  Treas- 
ury will  disbar  or  suspend  such  attorney  or  agent,  and, 
until  reinstated,  he  will  not  be  recognized  as  an  attor- 
ney or  agent  before  the  Treasury  Department  or  any 
Bureau  thereof.  Such  investigation  will  be  upon  writ- 
ten or  oral  testimony,  as  the  Secretary  of  the  Treasury 
may  direct. 

10.  These  regulations  shall  go  into  force  on  and  from 
the  first  day  of  March,  eighteen  hundred  and  eighty-six ; 
and  shall  apply  to  all  unsettled  claims  then  pending  in 
this  Department,  or  which  may  thereafter  be  presented  or 
referred  to  this  Department  for  adjudication,  but  shall 
not  be  construed  to  abrogate  any  existing  rules  or  or- 
ders of  the  accounting  officers  relating  to  the  fees  of 
attorneys  or  claim  agents  practicing  before  their  re- 
spective offices. 

Daniel  Manning, 

Secretary. 

II.  REGULATIONS  GOVERNING  THE  REVISION,  BY  THE  COMP- 
TROLLER OF  THE  TREASURY,  OF  ACCOUNTS 
SETTLED  BY  THE  AUDITORS. 

The  following  regulations  governing  the  matter  of 
applications  to  the  Comptroller  of  the  Treasury,  for  a 
revision  of  accounts  settled  by  the  Auditors  of  the  Treas 


396  ADMINISTRATIVE    LAW. 

ury,  are  published  for  the  information  and  guidance  of 
all  persons  interested. 

Section  8  of  the  Legislative,  Executive,  and  Judicial 
Appropriation  Act  of  July  31,  1894,  which  Act  in  so 
far  as  it  provided  for  a  reorganization  of  the  account- 
ing offices  of  the  Treasury  became  effective  October  1, 
1891,  contains  the  following: 

"The  balances  which  may  from  time  to' time  be  cer- 
tified by  the  Auditors  to  the  Division  of  Bookkeeping 
and  Warrants,  or  to  the  Postmaster-General,  upon  the 
settlement  of  public  accounts,  shall  be  final  and  conclu- 
sive upon  the  Executive  Branch  of  the  Government,  ex- 
cept that  any  person  whose  accounts  may  have  been 
settled,  the  head  of  the  Executive  Department,  or  of  the 
board,  commission,  or  establishment  not  under  the  juris- 
diction of  an  Executive  Department,  to  which  the  ac- 
count pertains,  or  the  Comptroller  of  the  Treasury,  may, 
within  a  year,  obtain  a  revision  of  said  account  by  the 
Comptroller  of  the  Treasury,  whose  decision  upon  such 
revision  shall  be  final  and  conclusive  upon  the  Execu- 
tive Branch  of  the  Government:  Provided,  That  the 
Secretary  of  the  Treasury  may,  when  in  his  judgment  the 
interests  of  the  Government  require  it,  suspend  payment 

and  direct  the  re-examination  of  any  account." 

****** 

"Any  person  accepting  pa\ment  under  a  settlement 
by  an  Auditor  shall  be  thereby  precluded  from  obtain- 
ing a  revision  of  such  settlement  as  to  any  items  upon 
which  payment  is  accepted;  but  nothing  in  this  Act 
shall  prevent  an  Auditor  from  suspending  items  in  an 
account  in  order  to  obtain  further  evidence  or  explana- 
tions necessary  to  their  settlement.  When  suspended 
items  are  finallv  settled  a  revision  may  be  had  as  in 


APPENDIX.  397 

the  case  of  the  original  settlement.  Action  upon  any 
account  or  business  shall  not  be  delayed  awaiting  ap- 
plications for  revision:  Provided,  That  the  Secretary 
of  the  Treasury  shall  make  regulations  fixing  the  time 
which  shall  expire  before  a  warrant  is  issued  in  pay- 
ment of  an  account  certified  as  provided  in  sections 
seven  and  eight  of  this  Act.*' 

Any  person  authorized  by  the  law  above  cited  to  ap- 
ply for  a  revision  of  an  account  should  address  a  com- 
munication in  writing  directed  to  the  Comptroller  of 
the  Treasury.  In  addition  to  a  specific  request  for  a 
revision  the  communication  should  contain  the  follow- 
ing : 

(1)  The  name  and  address  of  the  person  whose  ac- 
count is  to  be  revised;  and,  if  the  application  is  by  at- 
torney, his  address  should  be  given,  together  with  his 
authority  to  appear,  or  a  reference  to  his  power  of  at- 
torney on  file  with  the  account  or  in  the  Department. 

i  2  i  The  nature  of  the  account  or  claim,  by  which 
Auditor  it  was  settled,  with  the  number  and  date  of  his 
certificate  of  settlement. 

i  :'>  i  The  applicant  should  state  the  objections  lie  has 
to  the  Auditor's  settlement,  and  submit  any  reasons  or 
arguments  which  he  claims  tend  to  show  that  such  set- 
tlement was  not  in  accordance  with  the  law  and  facts. 

i  4  i  (Mai ma ii is  must  state  that  the  application  is  made 
in  good  faith,  believing  error  to  have  been  made  in  the 
sell  lenient  by  the  Auditor  to  their  prejudice. 

Attorneys  wishing  io  present  briefs  should  do  so  with 
the  application  for  revision,  but  if  not  furnished  at  that 
time  action  will  noi  be  suspended  unless  notice  is  given 
thai  the  attorney  wishes  to  submit  a  brief,  in  which 
case  a   reasonable  time  will  be  given  for  thai   purpose. 


398  ADMINISTRATIVE    LAW. 

Attorneys  wishing  to  submit  oral  arguments  should  give 
notice,  and  a  time  will  be  fixed  by  the  Comptroller  to 
suit  their  convenience  so  far  as  the  condition  of  the 
business  of  the  office  will  permit.  •  The  Auditor  who  set- 
tled the  account  will  be  notified  of  the  application  for 
revision  and  opportunity  given  him  to  explain  the  rea- 
son for  his  action. 

Attention  is  specially  called  to  the  fact  that  the  law 
does  not  authorize  the  Comptroller  to  revise  the  settle- 
ment of  an  Auditor  simply  to  the  extent  to  which  the 
applicant  objects  to  such  settlement,  but  upon  a  revi- 
sion the  whole  account  and  every  item  of  it  is  open 
for  the  consideration  and  final  action  of  the  Comptroller 
as  if  the  account  had  not  been  theretofore  audited.  Hut 
one  revision  of  an  account  will  be  made. 

Attention  is  also  called  to  that  clause  of  the  act  above 
quoted  which  provides  that :  "Any  person  accepting 
payment  under  a  settlement  by  an  Auditor  shall  be 
thereby  precluded  from  obtaining  a  revision  of  such 
settlement  as  to  any  items  upon  which  payment  is  ac- 
cepted." When  an  application  for  revision  is  upon  an 
item  or  items  part  of  which  Ikis  been  allowed  by  the 
Auditor  the  warrant  in  payment  of  the.  account  must 
be  transmitted  to  the  Comptroller  with  the  application. 

The  Comptroller  has  no  authority,  upon  the  revision 
of  an  account,  to  consider  items  which  have  been  simply 
suspended  by  the  Auditor  and  not  disallowed.  An  ap- 
plicant should  not,  in  his  application  for  the  revision  of 
his  account,  explain  suspended  items,  for  such  explana- 
tions will  necessarily  have  to  be  ignored.  All  explana- 
tions of  suspended  items  must  be  made  directly  to  the 
Auditor  who  settled  the  account.  When  suspended 
items  are  finally  settled  by  the  Auditor  (either  by  allow- 


APPENDIX.  399 

ing  or  disallowing  them  in  whole  or  in  part  i  a  revision 
may  be  had  as  in  the  case  of  the  original  settlement. 

When  an  account  lias  been  revised  the  differences  as 
found  by  the  Comptroller  will  be  certified  to  the  Auditor 
for  the  statement  of  an  account  as  required  by  law,  and 
the  applicant  will  be  promptly  notified  of  the  action 
taken  by  the  Comptroller. 

A  compliance  with  the  requirements  of  the  law  and 

these  regulations  will  facilitate  the  revision  of  accounts. 

R.  B.  Bowler, 

Comptroller. 
Approved  : 

J.  G.  Carlisle, 

Secretary. 

III.      STATUTES    GOVERNING    POWERS    AND    DUTIES    OF    THE 

ACCOUNTING  OFFICERS  OF  THE  TREASURY 

DEPARTMENT. 

The  following  provisions  of  the  act  of  July  31,  1894 
(28  Stat.,  205-211),  prescribe  the  powers  and  duties 
of  the  accounting  officers  of  the  Treasury  Department  as 
reorganized  by  that  act. 

To  facilitate  reference  to  particular  provisions  head- 
ings have  been  inserted  briefly  indicating  the  subject  of 
each  subdivision  and  in  a  few  instances  paragraphs  have 
been  subdivided. 

THE  AUDITORS. 

Sec  3.  The  Auditors  of  the  Treasury  shall  hereafter  be 
designated  as  follows:  The  First  Auditor  as  Auditor  for 
the  Treasury  Department  ;  the  Second  Auditor  as  Auditor 
for  the  War  Department;  the  Third  Auditor  as  Auditor 
for  the  Interior  Department;  the  Fourth  Auditor  as 
Auditor  for  the  Navy  Department;  the  Fifth  Auditor  as 
Auditor  for  the  State  and  other  Departments;  the  Sixth 


401) 


ADMINISTRATIVE    LAW. 


Auditor  as  Auditor  for  the  Post  Office  Department.  The 
designations  of  the  deputy  auditors  and  other  subordi- 
nates shall  correspond  with  those  of  the  Auditors.  And 
each  deputy  auditor,  in  addition  to  the  duties  now  re- 
quired to  be  performed  by  him,  shall  sign,  in  the  name 
of  the  Auditor,  such  letters  and  papers  as  the  Auditor 
may  direct.  (Amended  by  act  of  March  2,  1895,  28  Stat. 
TIT.. 

.THE   COMPTROLLER. 

Sec,  4.  The  offices  of  Commissioner  of  Customs,  Dep- 
uty Commissioner  of  Customs,  Second  Comptroller, 
Deputy  Second  Comptroller  and  Deputy  First  Comp- 
troller of  the  Treasury  are  abolished,  and  the  First 
Comptroller  of  the  Treasury  shall  hereafter  be  known 
as  Comptroller  of  the  Treasury.  He  shall  perform  the 
same  duties  and  have  the  same  powers  and  responsi- 
bilities (except  as  modified  by  this  Act)  as  those  now 
performed  by  or  appertaining  to  the  First  and  Second 
Comptrollers  of  the  Treasury  and  the  Commissioner  of 
Customs ;  and  all  provisions  of  law  not  inconsistent  with 
this  Act,  in  any  way  relating  to  them  or  either  of  them, 
shall  hereafter  be  construed  and  held  as  relating  to  the 
Comptroller  of  the  Treasury.  His  salary  shall  be  five 
thousand  live  hundred  dollars  per  annum.  There  shall 
also  be  an  Assistant  Comptroller  of  the  Treasury,  to  be 
appointed  by  the  President,  with  the  advice  and  consent 
of  the  Senate,  who  shall  receive  a  salary  of  five  thousand 
dollars  per  annum,  and  a  chief  clerk  in  the  office  of  the 
Comptroller,  who  shall  receive  a  salary  of  two  thousand 
five  hundred  dollars  per  annum. 

The  Assistant  Comptroller  of  the  Treasury  shall  per- 
form such  duties  as  may  be  prescribed  by  the  Comp- 
troller of  the  Treasury  and  shall  have  the  power,  un- 


APPENDIX.  401 

<ler  the  direction  of  the  Comptroller  of  the  Treasury,  to 
countersign  all  warrants  and  sign  all  other  papers. 

The  chief  clerk  shall  perform  such  duties  as  may  be 
assigned  to  him  by  the  Comptroller  of  the  Treasury, 
and  shall  have  the  power,  in  the  name  of  the  Comptrol- 
ler of  the  Treasury,  to  countersign  all  warrants  except 
accountable  warrants,  i  Amended  by  act  of  March  2, 
lsiir,,  28  Stat,  770.) 

RECOVERY   OF   DEBTS. 

The  Auditors,  under  the  direction  of  the  Comptroller 
of  tin*  Treasury,  shall  superintend  the  recovery  of  all 
debts  finally  certified  by  them,  respectively  to  be  due  to 
the  United  States. 

FAILURE  TO  RENDER  ACCOUNTS. 

Section  thirty-six  hundred  and  twenty-live  of  the  Re- 
vised Statutes  is  amended  by  substituting  the  words 
"proper  Auditor"  for  the  words  "First  Comptroller  of 
the  Treasury  (or  the  Commissioner  of  Customs  as  the 
case  may  be.  )" 

Section  thirty-six  hundred  and  thirty-three  of  the  Re- 
vised Statutes  is  amended  by  substituting  the  words 
"proper  Auditor"  for  the  words  "'first  or  Second  Comp- 
troller of  the  Treasury." 

FOKM    OF   ACCOUNTS. 

Sec.  5.    The  Comptroller  of  the  Treasury  shall,  under 

the  direction  of  the  Secretary  of  the  Treasury,  prescribe 
the  forms  of  keeping  and  rendering  all  public  accounts, 
excepl  those  relating  to  the  postal  revenues  and  expendi- 
tures therefrom. 

The  returns  of  fees  mentioned  in  section  seventeen 
hundred  and   twenty-five  of  the  Revised   Statutes  shall 

Adm.   Law — _'i 


402  ADMINISTRATIVE    LAW. 

be  made  as  prescribed  by  the  Comptroller  of  the  Treas- 
ury. 

AN  AUDITOR  MAY  BE  DIRECTED  TO  SETTLE  AX  ACCOUNT. 

Sec.  6.  Section  two  hundred  and  seventy-one  of  the 
Revised  Statutes  is  amended  to  read  as  follows: 

"Sec.  271.  The  Comptroller  of  the  Treasury,  in  any 
case  where,  in  his  opinion,  the  interests  of  the  Govern- 
ment require  it,  shall  direct  any  of  the  Auditors  forth- 
with to  audit  and  settle  any  particular  account  which 
such  Auditor  is  authorized  to  audit  and  settle." 

AUDITOR  FOR  THE  TREASURY  DEPARTMENT. 

Sec.  7.  Accounts  shall  be  examined  by  the  Auditors 
as  follows : 

First.  The  Auditor  of  the  Treasury  Department  shall 
receive  and  examine  all  accounts  of  salaries  and  inci- 
dental expenses  of  the  office  of  the  Secretary  of  the 
Treasury,  and  all  bureaus  and  offices  under  his  direc- 
tion, all  accounts  relating  to  the  customs  service,  public 
debt,  internal  revenue,  Treasurer  and  assistant  treas- 
urers, mints  and  assay  offices,  Bureau  of  Engraving  and 
Printing,  ("oast  and  Geodetic  Survey,  Revenue  Cutter 
Service,  Life-Saving  Service,  Light-House  Board,  Ma- 
rine-Hospital Service,  public  buildings,  Steamboat-In- 
spection Service,  immigration,  navigation.  Secret  Serv- 
ice, Alaskan  fur-seal  fisheries,  and  to  all  other  business 
within  the  jurisdiction  of  the  Department  of  the  Treas- 
ury, and  certify  the  balances  arising  thereon  to  the  Di- 
vision of  Bookkeeping  and  Warrants. 

AUDITOR  FOR   THE   WAR   DEPARTMENT. 

Second.  The  Auditor  for  the  War  Department  shall 
receive  and  examine  all  accounts  of  salaries  and  inci- 


APPENDIX.  403 

dental  expenses  of  the  office  of  the  Secretary  of  War  and 
all  bureaus  and  offices  under  his  direction,  all  accounts 
relating1  to  the  military  establishment,  armories  and  ar- 
senals, national  cemeteries,  fortifications,  public  build- 
ings and  grounds  under  the  Chief  of  Engineers,  rivers 
and  harbors,  the  Military  Academy,  and  to  all  other 
business  within  the  jurisdiction  of  the  Department  of 
War,  and  certify  the  balances  arising  thereon  to  the  Di- 
vision of  Bookkeeping  and  Warrants,  and  send  forth- 
with a  copy  of  each  certificate  to  the  Secretary  of  War. 

AUDITOR  FOR  THE  INTERIOR  DEPARTMENT. 

Third.  The  Auditor  for  the  Interior  Department  shall 
receive  and  examine  all  accounts  of  salaries  and  inci- 
dental expenses  of  the  office  of  the  Secretary  of  the  In- 
terior, and  of  all  bureaus  and  offices  under  his  direction, 
and  all  accounts  relating  to  the  Army  and  Navy  pen- 
sions, Geological  Survey,  public  lands,  Indians,  Archi- 
tect of  the  Capitol,  patents,  census,  and  to  all  other  busi- 
ness within  the  jurisdiction  of  the  Department  of  the 
Interior,  and  certify  the  balances  arising  thereon  to  the 
Division  of  Bookkeeping  and  Warrants,  and  send  forth- 
with a  copy  of  each  certificate  to  the  Secretary  of  the  In- 
terior. 

Sections  two  hundred  and  seventy-three  and  two  hun- 
dred and  seventy-five  <»f  the  Revised  Statutes  are  re- 
pealed. 

Section  four  hundred  and  fifty-six  of  the  Revised  Stat- 
utes is  amended  to  read  as  follows: 

"Sec.  456.  All  returns  relative  t<»  the  public  lands 
shall  be  made  to  the  Commissioner  of  the  General  Land 
Office." 


404  ADMINISTRATIVE    LAW. 

AUDITOB  FOR  THE  NAVY  DEPARTMENT. 

fourth.  The  Auditor  for  the  Navy  Department  shall 
receive  and  examine  all  accounts  of  salaries  and  inci- 
dental expenses  of  the  office  of  the  Secretary  of  the 
Navy,  and  of  all  bureaus  and  offices  under  his  direction, 
all  accounts  relating  to  the  Naval  Establishment  Ma- 
rine Corps,  Naval  Academy,  and  to  all  other  business 
within  the  jurisdiction  of  the  Department  of  the  Navy, 
and  certify  the  balances  arising  thereon  to  the  Division 
of  Bookkeeping  and  Warrants,  and  send  forthwith  a 
copy  of  each  certificate  to  the  Secretary  of  the  Navy. 

AUDITOR  FOR  THE  STATE  AND  OTHER   DEPARTMENTS. 

Fifth.  The  Auditor  for  the  State  and  other  Depart- 
ments shall  receive  and  examine  all  accounts  of  salaries 
and  incidental  expenses  <>f  the  offices  of  the  Secretary 
of  State,  the  Attorney  General,  and  the  Secretary  of 
Agriculture,  and  of  all  bureaus  and  offices  under  their 
direction;  all  accounts  relating  to  all  other  business 
within  the  jurisdiction  of  the  Department  of  State.  Jus- 
tice and  Agriculture;  all  accounts  relating  to  the  diplo- 
matic and  consular  service,  the  judiciary.  United  States 
courts,  judgments  of  United  States  courts,  Executive 
Office,  Civil  Service  Commission,  interstate  Commerce 
Commission,  Department  of  Labor,  District  of  Colum- 
bia, Fish  Commission,  Court  of  Claims  and  its  judg- 
ments, Smithsonian  Institution.  Territorial  govern- 
ments, the  Senate,  the  House  of  Representatives,  the 
Public  Printer,  Library  of  Congress,  Botanic  Garden, 
and  accounts  of  all  boards,  commissions,  and  establish- 
ments of  the  Government  not  within  the  jurisdiction  of 
any  of  the  Executive  Departments.  He  shall  certify  the 
balances  arising  thereon  to  the  Division  of  Bookkeeping 


APPENDIX.  405 

and  "Warrants,  and  send  forthwith  a  copy  of  each  cer- 
tificate, according  to  the  character  of  the  account,  to 
the  Secretary  of  the  Senate,  Clerk  of  the  House  of  Kep- 
resentatives,  Sergeant  at  Anns  of  the  House  of  Kepre- 
sentatives,  or  the  chief  officer  of  the  Executive  Depart- 
ment, commission,  board,  or  establishment  concerned. 
(Amended  by  act  of  July  1,  1902,  32  Stat.  592.) 

AUDITOR  FOB  THE  POST-OFFICE  DEPARTMENT. 

Sixth.  The  Auditor  for  the  Post-Office  Department 
shall  receive  and  examine  all  accounts  of  salaries  and 
incidental  expenses  of  the  office  of  the  Postmaster-Gen- 
eral and  of  all  bureaus  and  offices  under  his  direction, 
all  postal  and  money-order  accounts  of  postmasters,  all 
accounts  relating  to  the  transportation  of  the  mails,  and 
to  all  other  business  within  the  jurisdiction  of  the  Post- 
Office  Department,  and  certify  the  balances  arising 
thereon  to  the  Postmaster-General  for  accounts  of  the 
postal  revenue  and  expenditures  therefrom,  and  to  the 
Division  of  Bookkeeping  and  Warrants  for  other  ac- 
counts, and  send  forthwith  copies  of  the  certificates  in 
the  latter  cases  to  the  Postmaster-General. 

The  further  duties  of  this  Auditor  shall  continue  as 
now  defined  by  the  law,  except  as  the  same  are  modified 
by  the  provisions  of  this  Act. 

REVISION  OF  ACCOUNTS  I'.V  THE  COMPTROLLER. 

Sec.  8.  Tin'  balances  which  may  from  time  bo  time  be 
certified  by  tin-  Auditors  to  Hie  Division  of  Bookkeeping 
ami  Warrants,  or  to  the  Postmaster-General,  upon  the 
settlements  of  public  accounts,  shall  be  final  and  con- 
clusive upon  the  Executive  Branch  of  the  Government, 
except  thai  any  person  whose  accounts  may  have  been 


406  ADMINISTRATIVE    LAW. 

settled,  the  head  of  the  Executive  Department,  or  of  the 
board,  commission,  or  establishment  not  under  the  juris- 
diction of  au  Executive  Department,  to  which  the  ac- 
count pertains  or  the  Comptroller  of  the  Treasury,  may, 
within  a  year,  obtain  a  revision  of  the  said  account  by 
the  Comptroller  of  the  Treasury,  whose  decisions  upon 
such  revision  shall  be  final  and  conclusive  upon  the  Ex- 
ecutive Branch  of  the  Government : 

REEXAMINATION  OF  ACCOUNTS. 

Provided,  That  the  Secretary  of  the  Treasury  may, 
when  in  his  judgment  the  interests  of  the  Government 
require  it,  suspend  payment  and  direct  the  re-examina- 
tion of  any  account. 

AUDITORS  TO  STATE  ACCOUNTS  FOR  DIFFERENCES. 

Upon  a  certificate  by  the  Comptroller  of  the  Treasury 
of  any  differences  ascertained  by  him  upon  revision  the 
Auditor  who  shall  have  audited  the  account  shall  state 
an  account  of  such  differences,  and  certify  it  to  the  Di- 
vision of  Bookkeeping  and  Warrants,  except  that  bal- 
ances found  and  accounts  stated  as  aforesaid  by  the  Au- 
ditor for  the  Post-Office  Department  for  postal  revenues 
and  expenditures  therefrom  shall  be  certified  to  the 
Postmaster-General. 

ACCEPTANCE    OF    PAYMENT    PRECLUDES    REVISION. 

Any  person  accepting  payment  under  a  settlement  by 
an  Auditor  shall  be  thereby  precluded  from  obtaining  a 
revision  of  such  settlement  as  to  any  items  upon  which 
payment  is  accepted . 

SUSPENSION    OF    ITEMS    BY    AUDITORS. 

But  nothing  in  this  Act  shall  prevent  an  Auditor  from 


APPENDIX.  407 

suspending  items  in  an  account  in  order  to  obtain  fur- 
ther evidence  or  explanations  necessary  to  their  settle- 
ment. When  suspended  items  are  finally  settled,  a  re- 
vision may  be  had  as  in  the  case  of  the  original  settle- 
ment. Action  upon  any  account  or  business  shall  not  be 
delayed  awaiting  applications  for  revision : 

DELAYING  THE  ISSUE  OP  WARRANTS. 

Provided,  That  the  Secretary  of  the  Treasury  shall 
make  regulations  fixing  the  time  which  shall  expire  be- 
fore a  warrant  is  issued  in  payment  of  an  account  certi- 
fied as  provided  in  sections  seven  and  eight  of  this  Act. 

PRESERVATION    OF    ACCOUNTS. 

The  Auditors  shall,  under  the  direction  of  the  Comp- 
troller of  the  Treasury,  preserve,  with  their  vouchers 
and  certificates,  all  accounts  which  have  been  finally  ad- 
justed. 

CONSTRUCTION  OF  STATUTES  15  Y   THE  AUDITORS. 

All  decisions  l>\  Auditors  making  an  original  con- 
struction or  modifying  an  existing  construction  of  stat- 
utes shall  be  forthwith  reported  to  the  Comptroller  of 
the  Treasury,  and  items  in  any  account  affected  by  such 
decisions  shall  he  suspended  and  payment  thereof  with- 
held until  the  Comptroller  of  the  Treasury  shall  ap- 
prove, disapprove,  or  modify  such  decisions  and  certify 
his  actions  to  I  lie  Auditor. 

TRANSMISSION    OF   DECISIONS   TO   THE   AUDITORS. 

All  decisions  made  by  the  Comptroller  of  the  Treas- 
ury under  this  Ad  shall  he  forthwith  transmitted  to  the 
Auditor  or  Auditors  whose  duties  are  affected  thereby. 


408  ADMINISTRATIVE    LAW. 

ADVANCE  DECISIONS  BY  THE  COMPTROLLER. 

Disbursing  officers,  or  The  head  of  any  Executive  De- 
partment  or  other  establishment  not  under  any  of  the 
Executive  Departments,  may  apply  for  and  the.  Comp- 
troller of  the  Treasury  shall  render  his  decision  upon 
any  question  involving  a  payment  to  be  made  by  them 
or  under  them,  which  decision,  when  rendered,  shall 
govern  the  Auditor  and  the  Comptroller  of  the  Treasury 
in  passing  upon  the  account  containing  said  disburse- 
ment. 

GENERAL  PROVISIONS. 

Sections  one  hundred  and  ninety-one  and  two  hun- 
dred and  seventy  of  the  Revised  Statutes  are  repealed. 

Sec.  9.  This  Act,  so  far  as  it  relates  to  the  First 
Comptroller  of  the  Treasury  and  the  several  Auditors 
and  Deputy  Auditors  of  the  Treasury,  shall  be  held  and 
construed  to  operate  merely  as  changing  their  designa- 
tions and  as  adding  to  and  modifying  their  duties  and 
powers,  and  not  as  creating  new  officers. 

All  laws  not  inconsistent  with  this  Act,  relating  to  the 
Auditors  of  the  Treasury  in  connection  with  any  mat- 
ter, shall  be  understood  in  each  case  to  relate  to  the  Au- 
ditor to  whom  this  Act  assigns  the  business  of  the  Ex- 
ecutive Departmenl  or  other  establishment  concerned  in 
that  matter. 

Sec.  10.  The  Division  of  Warrants,  Estimates,  and 
Appropriations  in  the  office  of  the  Secretary  of  the 
Treasury  is  hereby  recognized  and  established  as  the 
Division  of  Bookkeeping  and  Warrants.  It  shall  be  un- 
der the  direction  of  the  Secretary  of  the  Treasury  as 
heretofore.  Upon  the  books  of  this  Division  shall  be 
kept    all   accounts  of  receipts   and   expenditures  there- 


APPENDIX.  40<) 

from;  and  seel  ion  three  hundred  and  thirteen  and  so 
much  of  sections  two  hundred  and  eighty-three  and  tliir- 
ty-six  hundred  and  seventy-five  of  the  Revised  Statutes 
as  require  those  accounts  to  be  kept  by  certain  Auditors 
and  the  Register  of  the  Treasury  are  repealed.  The  du- 
ties of  the  Register  of  the  Treasury  shall  be  such  as  are 
now  required  of  him  in  connection  with  the  public  debt 
and  such  further  duties  as  may  be  prescribed  by  the 
Secretary  of  the  Treasury. 

REQUISITIONS  TO   BE   SENT   TO   THE   AUDITORS. 

Sec.  11.  Every  requisition  Cor  an  advance  of  money, 
before  being  acted  on  by  the  Secretary  of  the  Treasury. 
shall  be  sent  to  the  proper  Auditor  for  action  thereon  as 
required  by  section  twelve  of  tin's  Act. 

WARRANTS   TO    BE   COUNTERSIGNED    BY    THE    COMPTROLLER^ 

ET< '. 

All  warrants,  when  authorized  by  law  and  signed  by 
the  Secretary  of  the  Treasury,  shall  be  countersigned  by 
the  Comptroller  of  the  Treasury,  and  all  warrants  for 
the  payment  of  money  shall  he  accompanied  either  by 
the  Auditor's  certificate,  mentioned  in  section  seven  of 
this  Act,  or  by  the  requisition  for  advance  of  money, 
which  certificate  or  requisition  shall  specify  the  partic- 
ular appropriation  to  which  the  same  should  he  charged, 
instead  of  being  specified  on  the  warrant,  as  now  pro- 
vided by  section  thirty-six  hundred  and  seventy-live  of 
the  Revised  Statutes;  and  shall  also  go  with  the  war- 
rant to  the  Treasurer,  who  shall  return  the  certificate  or 
requisition  to  the  proper  Auditor,  with  the  date  and 
amounl  of  the  drafl  issued  indorsed  thereon.  Requisi- 
tions  for  the  payment  of  money  on  all  audited  accounts, 
or  for  covering  money  into  the  Treasurv,  shall  not  here- 


410  ADMINISTRATIVE    LAW. 

niter  be  required.  And  requisitions  for  advances  of 
money  shall  not  be  countersigned  by  the  Comptroller  of 
the  Treasury. 

Section  two  hundred  and  sixty-nine  and  so  much  of 
section  three  hundred  and  five  of  the  Revised  Statutes 
as  requires  the  Register  of  the  Treasury  to  record  war- 
rants, are  repealed. 

TRANSMISSION  OF  ACCOUNTS  AND  DISAPPROVAL  OF  REQUISI- 
TIONS. 

Sec.  12.  All  monthly  accounts  shall  be  mailed  or 
otherwise  sent  to  the  proper  officer  at  Washington  with- 
in ten  days  after  the  end  of  the  month  to  which  they  re- 
late, and  quarterly  and  other  accounts  within  twenty 
days  after  the  period  to  which  they  relate,  and  shall 
be  transmitted  to  and  received  by  the  Auditors  within 
twenty  days  of  their  actual  receipt  at  the  proper  office 
in  Washington  in  the  case  of  monthly,  and  sixty  days 
in  the  case  of  quarterly  and  other  accounts.  Should 
there  be  any  delinquency  in  this  regard  at  the  time  of 
the  receipt  by  the  Auditor  of  a  requisition  for  an  ad- 
vance of  money,  he  shall  disapprove  the  requisition, 
which  he  may  also  do  for  other  reasons  arising  out  of 
the  condition  of  the  officer's  accounts  for  whom  the  ad- 
vance is  requested;  but  the  Secretary  of  the  Treasury 
may  overrule  the  Auditor's  decision  as  to  the  sufficiency 
of  these  latter  reasons:  Provided,  That  the  Secretary 
of  the  Treasury  shall  prescribe  suitable  rules  and  regu- 
lations, and  may  make  orders  in  particular  cases,  relax- 
ing the  requirement  of  mailing  or  otherwise  sending  ac- 
counts, as  aforesaid,  within  ten  or  twenty  days,  or  waiv- 
ing delinquency,  in  such  cases  only  in  which  there  is,  or 
is  likely  to  be,  a  manifest  physical  difficulty  in  comply- 
ing with  same,  it  being  the  purpose  of  this  provision  to 


APPENDIX.  411 

require  the  prompt  rendition  of  accounts  without  re- 
gard to  the  mere  convenience  of  the  officers,  and  to  for- 
bid the  advance  of  money  to  those  delinquent  in  render- 
ing them:  Provided  further.  That  should  there  be  a  de- 
lay by  the  administrative1  Departments  beyond  the 
aforesaid  twenty  or  sixty  days  in  transmitting  accounts, 
an  order  of  the  President  in  the  particular  case  shall  be 
necessary  to  authorize  the  advance  of  money  requested: 
And  provided  further,  That  this  section  shall  not  apply 
to  accounts  of  the  postal  revenue  and  expenditures 
therefrom,  which  shall  be  rendered  as  now  required  by 
law.  (Amended  by  acts  of  March  2,  1895,  23  Stat.,  807; 
January  5,  1899,  30  Stat.,  772;  December  20,  1899,  31 
Stat..  1  ;  March  2,  1901,  id.,  910.) 

DELINQUENT   OFFICERS   TO  BE   REPORTED  TO   CONGRESS. 

The  Secretary  of  the  Treasury  shall,  on  the  first  Mon- 
day of  January  in  each  year,  make  report  to  Congress 
of  such  officers  as  are  then  delinquent  in  the  rendering 
of  their  accounts  or  in  the  payment  of  balances  found 
due  from  them  for  the  last  preceding  fiscal  year.  Sec- 
tions two  hundred  and  fifty  and  two  hundred  and  sev- 
enty-two of  the  Revised  Statutes  are  repealed. 

Section  thirty-six  hundred  and  twenty-two  of  the  Re- 
vised Statutes  is  amended  by  striking  therefrom  the  fol- 
lowing words:  "The  Secretary  of  the  Treasury  may,  if 
in  his  opinion  the  circumstances  of  the  case  justify  and 
require  it,  extend  the  time  hereinbefore  prescribed  for 
the  rendition  of  accounts.*' 

JUDICIARY  ACCOUNTS. 

Sec  13.  Before  transmission  to  the  Department  of 
the  Treasury,  the  accounts  of  dish-id  attorneys,  assist- 
ant attorneys,  marshals,  commissioners,  clerks,  and  oth- 


412  ADMINISTRATIVE    LAW. 

er  officers  of  the  courts  of  the  United  States,  except  con- 
sular courts,  made  out  and  approved  as  required  by  law, 
and  accounts  relating  to  prisoners  convicted  or  held  for 
trial  in  any  court  of  the  United  States,  and  all  other 
accounts  relating  to  the  business  of  the  Department  of 
Justice  or  of  the  courts  of  the  United  States  other  than 
consular  courts,  shall  be  sent  with  their  vouchers  to  the 
Attorney-General  and  examined  under  his  supervision. 
Judges  receiving  salaries  from  the  Treasury  of  the 
United  States  shall  be  paid  monthly  by  the  disbursing 
officer  of  the  Department  of  Justice,  and  to  him  all  cer- 
tificates of  nonabsence  or  of  the  cause  of  absence  of 
judges  in  the  Territories  shall  be  sent.  Interstate  Com- 
merce Commissioners  and  other  officers,  now  paid  as 
judges  are,  shall  be  paid  monthly  by  the  proper  disburs- 
ing officer  or  officers. 

CLAIMS.    DOUBLE    EXAMINATION    OP. 

Sec.  14.  In  case  of  claims  presented  to  an  Auditor 
which  have  not  had  an  administrative  examination,  the 
Auditor  shall  cause  them  to  be  examined  by  two  of  his 
subordinates  independently  of  each  other. 

RECEIPTS  AND  EXPENDITURES  TO  BE  REPORTED  TO  CONGRESS. 

SEC.  15.  II  shall  be  the  duty  of  the  Secretary  of  the 
Treasury  annually  to  lay  before  Congress  on  the  first 
day  of  the  regular  session  thereof,  an  accurate,  combin- 
ed statement  of  the  receipts  and  expenditures  during  the 
last  preceding  fiscal  year  of  all  public  moneys,  includ- 
ing those  of  the  Post-Office  Department,  designating  the 
amount  of  the  receipts,  whenever  practicable,  by  ports, 
districts  and  Slates,  and  the  expenditures,  by  each  sep- 
arate head  of  appropriation. 


APPENDIX.  413 

Sec.  16.  In  section  three  hundred  and  seven  of  the 
Revised  Statutes  the  words  "Secretary  of  the  Treasury" 
arc  substituted  for  The  words  "Register  of  the  Treas- 
ury." 

CERTIFICATION    OF    TRANSCRIPTS. 

Sec.  17.  The  transcripts  from  the  books  and  proceed- 
ings of  the  Department  of  the  Treasury,  provided  for  in 
section  eighl  hundred  and  eighty-six  of  the  Revised  Stat- 
utes, shall  hereafter  lie  certified  by  the  Secretary  or  an 
Assistant  Secretary  of  the  Treasury,  and  the  copies  of 
the  contracts  and  other  papers,  therein  provided  for, 
shall  be  certified  by  the  Auditor  having  the  custody  of 
such  papers.  (Amended  by  act  of  March  2,  1895,  28 
Stat..  809.  I 

CONTRACTS   TO    BE    DEPOSITED   WITH    THE    AUDITORS. 

Sec.  18.  Section  thirty-seven  hundred  and  forty- 
three  of  the  Revised  Statutes  is  amended  to  read  as  fol- 
lows : 

"Sec.  .*574:5.  All  contracts  to  In-  made  by  virtue  of 
any  law,  and  requiring  the  advance  of  money,  or  in  any 
manner  connected  with  the  settlement  of  public  ac- 
counts, shall  he  deposited  promptly  in  the  offices  of  the 
Auditors  of  the  Treasury,  according  to  the  nature  of  the 
contracts:  Provided,  That  this  section  shall  not  apply 
to  the  existing  laws  in  regard  to  the  contingenl  fund  of 
( Congress." 

Sec.  19.  Section  twenty-six  hundred  and  thirty-nine 
of  the  Revised  Statutes  is  amended  by  substituting  the 
words  "proper  Auditor"  for  the  words  "Commissioner 

of  (  'ustoiiis.'" 


414  ADMINISTRATIVE    LAW. 

CUSTOMS    OFFICERS   TO   TRANSMIT    TAPERS. 

Sec.  20.  It  shall  be  the  duty  of  the  collectors  of  cus- 
toms and  other  officers  of  customs  to  transmit,  with 
their  accounts,  to  the  officers  charged  with  the  settle- 
ment of  their  accounts,  all  such  papers,  records,  or  cop- 
ies thereof  relating  to  their  transactions  as  officers  of 
customs  as  the  Secretary  of  the  Treasury  may  direct. 

ACCOUNTS  PENDING  FOR  SETTLEMENT  OCTOBER  1,  1894. 

Sec  21.  All  accounts  stated  by  the  Auditors  before 
the  first  day  of  October,  eighteen  hundred  and  ninety- 
four,  and  then  pending  for  settlement  in  the  offices  of 
the  First  or  Second  Comptroller,  or  the  Commissioner 
of  Customs,  shall  be  revised  by  the  Comptroller  of  the 
Treasury  in  the  manner  provided  by  existing  law,  and 
the  balances  arising  thereon  shall  be  certified  to  the 
Division  of  Bookkeeping  and  Warrants. 

PRESERVATION  OF  PAPERS  AND  PROPERTY. 

Sec.  22.  It  shall  be  the  duty  of  the  Secretary  of  the 
Treasury  to  make  appropriate  rules  and  regulations  for 
carrying  out  the  provisions  of  this  Act,  and  for  trans- 
ferring or  preserving  books,  papers  or  other  property 
appertaining  to  any  office  or  branch  of  business  affected 
by  it. 

ADMINISTRATIVE    EXAMINATION    OF    ACCOUNTS. 

It  shall  also  be  the  duty  of  the  heads  of  the  several  Ex- 
ecutive Departments  and  of  the  proper  officers  of  other 
Government  establishments,  not  within  the  jurisdiction 
of  any  Executive  Department,  to  make  appropriate 
rules  and  regulations  to  secure  a  proper  administrative 
examination  of  all  accounts  sent  to  them,  as  required  by 


APPENDIX.  4|5 

section  twelve  of  this  Act,  before  their  transmission  to 
the  Auditors,  and  for  the  execution  of  other  require- 
ments of  this  Act  in  so  far  as  the  same  relate  to  the  sev- 
eral Departments  or  establishments. 

REOPENING  ACCOU NTS. 

Sec.  23.  Nothing  in  this  Act  shall  be  construed  to 
authorize  the  re-examination  and  payment  of  any  claim 
or  account  which  has  heretofore  been  disallowed  or  set- 
tled. 

Sec.  24.  The  provisions  of  sections  three  to  twenty- 
three  inclusive,  of  this  Act  shall  be  in  force  on  and  after 
the  first  day  of  October  eighteen  hundred  and  ninety- 
four. 

Sec.  25.  All  laws  or  parts  of  laws  inconsistent  with 
this  Act  are  repealed. 


APPENDIX  C. 

CUSTOMS  ADMINISTRATIVE  ACT  OF  JUNE  10, 
1890,  AS  AMENDED  BY  ACT  OF  JULY  24.  1897. 

AN     ACT    TO    SIMPLIFY    THE     LAWS     IN     RELATION     TO    THE 
COLLECTION   OF  THE  REVENUES. 

Be  il  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  as- 
sembledj  That  all  merchandise  imported  into  the  United 
States  shall,  for  the  purposes  of  this  act,  be  deemed  and 
held  to  be  the  property  of  the  person  to  whom  the  mer- 
chandise may  be  consigned  ;  but  the  holder  of  any  bill 
of  lading  consigned  to  order  and  indorsed  by  the  con- 
signor shall  be  deemed  the  consignee  thereof;  and  in 
case  of  the  abandonmenl  of  any  merchandise  to'the  un- 
derwriters the  latter  may  be  recognized  as  the  consignee. 

Sec.  2.  That  all  invoices  of  imported  merchandise 
shall  be  made  our  in  the  currency  of  the  place  or  country 
from  whence  the  importations  shall  lie  made  or  if  pur- 
chased in  the  currency  actually  paid  therefor,  shall  con- 
tain a  correct  description  of  such  merchandise,  and  shall 
be  made  in  triplicate  or  in  quadruplicate  in  case  of 
merchandise  intended  for  immediate  transportation 
without  appraisement,  and  signed  by  the  person  owning 
or  shipping  the  same,  if  the  merchandise  has  been  actu- 
ally purchased,  or  by  the  manufacturer  or  owner  there- 
of, if  the  same  has  been  procured  otherwise  than  by  pur- 
chase, or  by  the  duly  authorized  agent  of  such  purchaser. 
manufacturer,  or  owner. 


APPENDIX.  417 

Sec.  3.  That  all  such  invoices  shall,  at  or  before  the 
shipment  of  the  merchandise,  be  produced  to  the  consul, 
vice  consul,  or  commercial  agent  of  the  United  States  of 
the  consular  district  in  which  the  merchandise  was 
manufactured  or  purchased  as  the  case  may  be,  for  ex- 
port to  the  United  States,  and  shall  have  indorsed  there- 
on, when  so  produced,  a  declaration  signed  by  the  pur- 
chaser, manufacturer,  owner,  or  agent,  setting  forth 
that  the  invoice  is  in  all  respects  correct  and  true,  and 
was  made  at  the  place  from  which  the  merchandise  is 
to  be  exported  to  the  United  States;  that  it  contains, 
if  the  merchandise  was  obtained  by  purchase,  a  true  and 
full  statement  of  the  time  when,  the  place  where,  the 
person  from  whom  the  same  was  purchased,  and  the 
actual  cost  thereof  and  of  all  charges  thereon,  as  pro- 
vided by  this  act;  and  that  no  discounts,  bounties,  or 
drawbacks  are  contained  in  the  invoice  but  such  as  have- 
been  actually  allowed  thereon;  and  when  obtained  in 
any  other  manner  than  by  purchase,  the  actual  market 
value  or  wholesale  price  thereof  at  the  time  of  exporta- 
tion to  the  United  States  in  the  principal  markets  of  the 
country  from  whence  exported;  that  such  actual  market 
value  is  the  price  at  which  the  merchandise  described 
in  the  invoice  is  freely  offered  lor  sale  to  all  purchasers 
in  said  markets,  and  that  il  is  the  price  which  the  man- 
ufacturer or  owner  making  the  declaration  would  have 
received,  and  was  willing  to  receive,  for  such  merchan- 
dise sold  in  the  ordinary  course  of  trade,  in  the  ustta?. 
wholesale  quantities,  and  that  it  includes  all  charges 
thereon  as  provided  by  this  act;  and  the  actual  quan- 
tity thereof;  and  that  no  different  invoice  of  the  mer- 
chandise mentioned  in  the  invoice  so  produced  lias  been 
(>]•  will  be  furnished  to  any  one.  If  the  merchandise 
Adm.  Law — 27. 


418  ADMINISTRATIVE    LAW. 

was  actually  purchased,  the  declaration  shall  also  con- 
tain a  statement  that  the  currency  in  which  such  in- 
voice is  made  out  is  that  which  was  actually  paid  for 
the  merchandise  by  the  purchaser. 

Sec.  4.  That,  except  in  case  of  personal  effects  ac- 
companying the  passenger,  no  importation  of  any  mer- 
chandise exceeding  one  hundred  dollars  in  dutiable  value 
shall  be  admitted  to  entry  without  the  production  of  a 
duly-certified  invoice  thereof  as  required  by  law,  or  of 
<in  affidavit  made  by  the  owner,  importer,  or  consignee, 
before  the  collector  or  his  deputy,  showing  why  it  is 
impracticable  to  produce  such  invoice;  and  no  entry 
shall  be  made  in  the  absence  of  a  certified  invoice,  upon 
affidavit  as  aforesaid,  unless  such  affidavit  be  accompa- 
nied by  a  statement  in  the  form  of  an  invoice,  or  other- 
wise, showing  the  actual  cost  of  such  merchandise,  if 
purchased,  or  if  obtained  otherwise  than  by  purchase, 
ilie  actual  market  value  or  wholesale  price  thereof  at  the 
time  of  exportation  to  the  United  States,  in  the  prin- 
cipal markets  of  the  country  from  which  the  same  has 
been  imported;  which  statement  shall  be  verified  by 
(lie  oath  of  the  owner,  importer,  consignee,  or  agent  de- 
siring to  make  entry  of  the  merchandise,  to  be  adminis- 
tered by  the  collector  or  his  deputy,  and  it  shall  be 
lawful  for  the  collector  or  his  deputy  to  examine  the 
deponent  under  oath  touching  the  sources  of  his  knowl- 
edge, information,  or  belief  in  the  premises,  and  to  re- 
quire  him  to  produce  any  letter,  paper,  or  statement 
of  account,  in  his  possession,  or  under  his  control,  which 
may  assist  the  officers  of  customs  in  ascertaining  the 
actual  value  of  the  importation  or  any  part  thereof; 
and  in  default  of  such  production  when  so  requested, 
such  owner,  importer,  consignee,  or  agent  shall  be  there- 


APPENDIX.  ,  419 

after  debarred  from  producing  any  such  letter,  paper, 
or  statement  for  the  purpose  of  avoiding  any  additional 

duty,  penalty,  or  forfeiture  incurred  under  this  act,  un- 
less he  shall  show  to  the  satisfaction  of  the  court  or  the 
officers  of  the  customs,  as  the  case  may  be,  that  it  was 
not  in  his  power  to  produce  the  same  when  so  demand- 
ed; ami  no  merchandise  shall  be  admitted  to  entry  un- 
der the  provisions  of  this  section  unless  the  collector 
shall  he  satisfied  thai  the  failure  to  produce  a  duly  cer- 
tified invoice  is  due  To  causes  beyond  the  control  of  the 
owner,  consignee,  or  agent  thereof:  Provided,  That 
the  Secretary  of  the  Treasury  may  make  regulations 
by  which  hooks,  magazines,  and  other  periodicals  pub- 
lished and  imported  in  successive  parts,  numbers,  or 
volumes,  and  entitled  to  he  imported  free  of  duty,  shall 
require  hut  one  declaration  for  the  entire  series.  And 
when  entry  of  merchandise  exceeding  one  hundred  dol- 
lars in  value  is  made  by  a  statement  in  the  form  of  an 
invoice  the  collector  shall  require  a  bond  for  the  pro- 
duction of  a  duly  certified  invoice. 

Sec.  5.  That  whenever  merchandise  imported  into  the 
United  Stales  is  entered  by  invoice,  one  of  the  following 
declarations,  according  to  the  nature  of  the  case,  shall 
be  filed  with  the  collector  of  the  port.  ;it  the  time  of 
entry,  by  the  owner,  importer,  consignee,  or  agenl  ;  which 
declaration  so  tiled  shall  he  duly  signed  by  the  owner, 
importer,  consignee,  or  agent,  before  the  collector,  or 
before  ;i  notary  public  or  other  officer  duly  authorized 
by  law  to  administer  oaths  and  take  acknowledgments, 
who  may  he  designated  by  the  Secretary  of  the  Treas- 
ury to  receive  such  declarations  and  to  certify  to  the 
identity  of  the  persons  making  them,  under  regulations 
to  he  prescribed  by  the  Secretary  of  the  Treasury;  and 


420  ADMINISTRATIVE    LAW. 

every  officer  so  designated  shall  file  with  the  collector 
of  the  port  a  copy  of  his  official  signature  and  seal : 
Provided,  That  if  any  of  the  invoices  or  bills  of  lading 
of  any  merchandise  imported  in  any  one  vessel,  which 
should  otherwise  be  embraced  in  said  entry,  have  not 
been  received  at  the  date  of  the  entry,  the  declaration 
may  state  the  fact,  and  thereupn  such  merchandise  of 
which  the  invoices  or  bills  of  lading  are  not  produced 
shall  not  be  included  in  such  entry,  but  may  be  entered 
subsequently. 

DECLARATION   OF   CONSIGNEE.   IMPORTER,   OR  AGENT. 

I ,  do  solemnly  and  truly  declare  that 

I  am  the  consignee  [importer  or  agent]  of  the  mer- 
chandise described  in  the  annexed  entry  and  invoice; 
that  the  invoice  and  bill  of  lading  now  presented  by 

me  to  the  collector  of are  the  true  and 

only  invoice  and  bill  of  lading  by  me  received  of  all  the 

goods,  wares,  and  merchandise  imported  in  the  

whereof is  master,   from  , 

for  account  of  any  person  whomsoever  for  whom  I  am 
authorized  to  enter  the  same;  that  the  said  invoice  and 
bill  of  lading  are  in  the  state  in  which  they  were  actu- 
ally received  by  me,  and  that  I  do  not  know  or  believe  in 
the  existence  of  any  other  invoice  or  bill  of  lading  of 
the  said  goods,  wares,  and  merchandise;  that  the  entry 
now  delivered  to  the  collector  contains  a  just  and  true 
account  of  the  said  goods,  wares,  and  merchandise,  ac- 
cording to  the  said  invoice  and  bill  of  lading;  that  noth- 
ing has  been,  on  my  part,  nor  to  my  knowledge  on  the 
part  of  any  other  person,  concealed  or  suppressed,  where- 
by the  United  States  may  be  defrauded  of  any  part  of 
the  duty  lawfully  due  on  the  said  goods,  wares,  and 


APPENDIX.  421 

merchandise;  that  the  said  invoice  and  the  declaration 
therein  are  in  all  respects  true,  and  were  made  by  the 
person  by  whom  the  same  purports  to  have  been  made; 
and  that  if  at  any  time  hereafter  I  discover  any  error 
in  the  said  invoice,  or  in  the  account  now  rendered  of 
the  said  goods,  wares,  and  merchandise,  or  receive  any 
other  invoice  of  the  same,  I  will  immediately  make  the 
same  known  to  the  collector  of  this  district.  And  I  do 
further  solemnly  and  truly  declare  that  to  the  best  of 
my  knowledge  and  belief  [insert  the  name  and  residence 
of  the  owner  or  owners]  is  [or  are]  the  owner  [or  own- 
ers] of  the  goods,  wares,  and  merchandise  mentioned 
in  the  annexed  entry ;  that  the  invoice  now  produced  by 
me  exhibits  the  actual  cost  [if  purchased]  or  the  actual 
market  value  or  wholesale  price  [if  otherwise  obtained] 
at  the  time  of  exportation  to  the  United  States  in  the 
principal  markets  of  the  country  from  whence  import- 
ed of  the  said  goods,  wares,  and  merchandise,  and  in- 
cludes and  specifies  the  value  of  all  cartons,  cases,  crates, 
boxes,  sacks,  and  coverings  of  any  kind,  and  all  other 
costs,  charges,  and  expenses  incident  to  placing  said 
goods,  wares,  and  merchandise  in  condition,  packed 
ready  for  shipment  to  the  United  States,  and  no  other 
or  different  discount,  bounty,  <>r  drawback  but  such  as 
has  been  actually  allowed  on  the  same. 

DECLARATION    OF    OWNER    IN    ''ASKS    WHERE    MERCHANDISE 
HAS    BEEN    ACTUALLY    PURCHASED. 

I, do  solemnly  and  trulv  declare  that 


I  am  the  owner  of  the  merchandise  described  in  the 
annexed  entry  and  invoice;  that  the  entry  now  deliv- 
ered by  me  to  the  collector  of  contains  a  just 

and  true  account  of  all  the  goods,  wares,  and  merchan- 


422  ADMINISTRATIVE    LAW. 

dise  imported  by  or  consigned  to  me,  in  the ■ — 

whereof is  master,  from ;  that  the 

invoice  and  entry  which  I  now  produce  contain  a  just 
and  faithful  account  of  the  actual  cost  of  the  said  goods, 
wares,  and  merchandise  and  include  and  specify  the 
value  of  all  cartons,  cases,  crates,  boxes,  sacks,  and  cov- 
erings of  any  kind,  and  all  other  costs,  charges,  and  ex- 
penses incident  to  placing  said  goods,  wares,  and  mer- 
chandise in  condition,  packed  ready  for  shipment  to  the 
United  States,  and  no  other  discount,  drawback,  or 
bounty  but  such  as  has  been  actually  allowed  on  the 
same;  that  I  do  not  know  nor  believe  in  the  existence  of 
any  invoice  or  bill  of  lading  other  than  those  now  pro- 
duced by  me,  and  that  they  are  in  the  state  in  which 
I  actually  received  them.  And  I  further  solemnly  and 
truly  declare  that  I  have  not  in  the  said  entry  or  in- 
voice concealed  or  sup] tressed  anything  whereby  the 
United  States  may  be  defrauded  of  any  part  of  the  duty 
lawfully  due  on  the  said  goods,  wares,  and  merchan- 
dise; that  to  the  best  of  my  knowledge  and  belief  the 
said  invoice  and  the  declaration  thereon  are  in  all  re- 
spects true,  and  were  made  by  the  person  by  whom  the 
same  purports  to  have  been  made;  and  that  if  at  any 
time  hereafter  I  discover  any  error  in  the  said  invoice 
or  in  the  account  now  produced  of  the  said  goods,  wares, 
and  merchandise,  or  receive  any  other  invoice  of  the 
same,  I  will  immediately  make  the  same  known  to  the 
collector  of  this  district. 

DECLARATION     OF     MANUFACTURER     OR     OWNER     IN     CASKS 

WHERE   MERCHANDISE   HAS   NOT  BEEN 

ACTUALLY  PURCHASED. 

I, ,  do  solemnly  and  truly  declare  that 

I  am  the  owner  (or  manufacturer)  of  the  merchandise 


APPENDIX.  423 

described  in   the  annexed  entry  and  invoice;  that  the 

entry  now  delivered   by  me  to  the  collector  of  

contains  a  jnst  and  true  account  of  all  the  goods,  wares, 
and  merchandise   imported   by  or  consigned  to  me  in 

the   ,    whereof   is   master,    from 

;   that   the  said   g Is,   wares,   and    merchandise 

were  not  actually  bought  by  me,  or  by  my  agent,  in  the 
ordinary  mode  of  bargain  and  sale,  but  that  neverthe- 
less the  invoice  which  I  now  produce  contains  a  just 
and  faithful  valuation  of  the  same,  at  their  actual  mar- 
ket value  or  wholesale  price,  at  the  time  of  exportation 
to  the  United  States,  in  the  principal  markets  of  the 
country  from  whence  imported  for  my  account  (or  for 
account  of  myself  or  partners  i  ;  that  such  actual  mar- 
ket value  is  the  price  at  which  the  merchandise  described 
in  the  invoice  is  freely  offered  for  sale  to  all  purchasers 
in  said  markets,  and  is  the  price  which  I  would  have 
received  and  was  willing  to  receive  for  such  merchan- 
dise sold  in  the  ordinary  course  of  trade  in  the  usual 
wholesale  quantities;  that  the  said  invoice  contains  also 
a  just  and  faithful  account  of  all  the  cost  of  finishing 
said  goods,  wares,  and  merchandise  to  their  present  con- 
dition, and  includes  and  specifies,  the  value  of  all  car- 
tons, cases,  crates,  boxes,  sacks,  and  coverings  of  any 
kind,  and  all  other  costs  and  charges  incident  to  placing 
said  goods,  wares,  and  merchandise  in  condition  packed 
ready  for  shipment  to  (he  United  Slates,  and  no  other 
discount,  drawback,  or  bounty  but  such  as  has  been 
actually  allowed  on  the  said  goods,  wares,  and  mer- 
chandise; thai  the  said  invoice  and  the  declaration  there- 
on are  in  all  respects  true,  and  were  made  by  the  person 
by  whom  the  same  purports  to  have  been  made;  that  I 
do  not  know  nor  believe  in  the  existence  of  any  invoice 


424  ADMINISTRATIVE    LAW. 

or  bill  of  lading  other  than  those  now  produced  by  me, 
and  that  they  are  in  the  state  in  which  I  actually  re- 
ceived them.  And  I  do  further  solemnly  and  truly  de- 
clare that  I  have  not  in  the  said  entry  or  invoice  con- 
cealed or  suppressed  anything  whereby  the  United 
States  may  be  defrauded  of  any  part  of  the  duty  law- 
fully due  on  the  said  goods,  wares,  and  merchandise; 
and  that  if  at  any  time  hereafter  I  discover  any  error 
in  the  said  invoice,  or  in  the  account  now  produced  of 
the  said  goods,  wares,  and  merchandise,  or  receive  any 
other  invoice  of  the  same,  I  will  immediately  make  the 
same  known  to  the  collector  of  this  district. 

Sec.  0.  That  any  person  who  shall  knowingly  make 
any  false  statement  in  the  declarations  provided  for  in 
the  preceding  section,  or  shall  aid  or  procure  the  mak- 
ing <>f  any  such  false  statemenl  as  to  any  matter  ma- 
terial thereto,  shall,  on  conviction  thereof,  be  punished 
by  a  fine  not  exceeding  live  thousand  dollars,  or  by  im- 
prisonment at  bard  labor  no!  more  than  two  years,  or 
both,  in  the  discretion  of  the  court:  Provided,  That 
nothing  in  this  section  shall  be  construed  to  relieve  im- 
ported merchandise  from  forfeiture  by  reason  of  such 
false  statement  or  for  any  cause  elsewhere  provided  by 
law. 

Sec.  7.  That  the  owner,  consignee,  or  agent  of  any 
imported  merchandise  which  has  been  actually  pur- 
chased may,  at  the  time  when  he  shall  make  and  verify 
his  written  entry  of  such  merchandise,  but  not  after- 
wards, make  such  addition  in  the  entry  to  the  cost  or 
value  .uiven  in  the  invoice  or  pro  forma  invoice  or  state- 
ment in  form  of  an  invoice,  which  he  shall  produce  with 
his  entry,  as  in  his  opinion  may  raise  the  same  to  the 
actual    market   value  Or   wholesale  price  of   such    mer- 


APPENDIX.  425 

chandise  at  the  time  of  exportation  to  the  United  States, 
in  the  principal  markets  of  the  country  from  which  the 
same  has  been  imported;  but  no  such  addition  shall  be 
made  upon  entry  to  the  invoice  value  of  any  imported 
merchandise  obtained  otherwise  than  by  actual  pur- 
chase; and  the  collector  within  whose  district  any  mer- 
chandise may  be  imported  or  entered,  whether  the  same 
has  been  actually  purchased  or  procured  otherwise  than 
by  purchase,  shall  cause  the  actual  market  value  or 
wholesale  price  of  such  merchandise  to  be  appraised; 
and  if  the  appraised  value  of  any  article  of  imported 
merchandise  subject  to  an  ad  valorem  duty  or  to  a  duty 
based  upon  or  regulated  in  any  manner  by  the  value 
thereof  shall  exceed  the  value  declared  in  the  entry, 
there  shall  be  levied,  collected,  and  paid,  in  addition  to 
the  duties  imposed  by  law  on  such  merchandise,  an 
additional  duty  of  one  per  centum  of  the  total  appraised 
value  thereof  for  each  one  per  centum  that  such  ap- 
praised value  exceeds  the  value  declared  in  the  entry, 
but  the  additional  duties  shall  only  apply  to  the  par- 
ticular article  or  articles  in  each  invoice  that  are  so 
undervalued,  and  shall  be  limited  to  fifty  per  centum  of 
the  appraised  value  of  such  article  or  articles.  Such 
additional  duties  shall  not  be  construed  to  be  penal, 
and  shall  not  be  remitted,  nor  payment  thereof  in  any 
way  avoided,  except  in  cases  arising  from  a  manifest 
clerical  error,  nor  shall  they  be  refunded  in  case  of  ex- 
portation  of  the  merchandise,  or  on  any  other  account, 
nor  shall  they  be  subject  to  ilie  benefil  of  drawback: 
Provided,  That  if  the  appraised  value  of  any  merchan- 
dise shall  exceed  the  value  declared  in  the  entry  by 
more  than  fifty  per  centum,  excepl  when  arising  from 
a    manifest    clerical    error,    such    entry   shall    be   held   to 


426  ADMINISTRATIVE    LAW. 

be  presumptively  fraudulent,  and  the  collector  of  cus- 
toms shall  seize  such  merchandise  and  proceed  as  in 
case  of  forfeiture  for  violation  of  the  customs  laws,  and 
in  any  legal  proceed  inn-  that  may  result  from  such  seiz- 
ure, the  undervaluation  as  shown  by  the  appraisal  shall 
be  presumptive  evidence  of  fraud,  and  the  burden  of 
proof  shall  be  on  the  claimant  to  rebut  the  same  and 
forfeiture  shall  be  adjudged  unless  he  shall  rebut  such 
presumption  of  fraudulent  intent  by  sufficient  evidence. 
The  forfeiture  provided  for  in  tliis  section  shall  apply 
to  the  whole  of  the  merchandise  or  the  value  thereof  in 
the  case  or  package  containing  the  particular  article  <>r 
articles  in  each  invoice  which  are  undervalued:  Pro- 
vided, further,  That  all  additional  duties,  penalties  or 
forfeitures  applicable  to  merchandise  entered  by  a  duly 
cert  died  invoice,  shall  be  alike  applicable  to  merchan- 
dise entered  by  a  pro  forma  invoice  or  statement  in  the 
form  of  an  invoice,  and  no  forfeiture  or  disability  of  any 
kind,  incurred  under  the  provisions  of  this  section  shall 
lie  remitted  or  mitigated  by  the  Secretary  of  the  Treas- 
ury. The  duty  shall  not.  however,  lie  assessed  in  any 
case  upon  an  amount  less  than  the  invoice  or  entered 
value. 

SBC.  8.  That  when  merchandise  entered  for  customs 
duty  has  been  consigned  for  sale  by  or  on  account  of  the 
manufacturer  thereof,  to  a  person,  agent,  partner,  or  con- 
signee in  the  United  States,  such  person,  agent,  partner, 
or  consignee  shall,  at  the  time  of  the  entry  of  such  mer- 
chandise, present  to  the  collector  of  customs  at  the  port 
where  such  entry  is  made,  as  a  part  of  such  entry,  and 
in  addition  to  the  certified  invoice  or  statement  in  the 
form  of  an  invoice  required  by  law,  a  statement  signed 
by  such  manufacturer,  declaring  the  cost  of  production 


APPENDIX.  427 

of  such  merchandise,  such  cost  to  include  all  the  ele- 
ments of  cost  as  staled  in  section  eleven  of  this  act. 
When  merchandise  entered  for  customs  duty  lias  been 
consigned  for  sale  l>y  or  on  account  of  a  person  other 
than  tin1  manufacturer  of  such  merchandise,  to  a  per- 
son, agent,  partner,  or  consignee  in  the  United  States, 
such  person,  agent,  partner,  or  consignee  shall,  at  the 
time  of  the  entry  of  such  merchandise  present  to  the  col- 
lector of  customs  at  the  port  where  such  entry  is  made, 
as  a  part  of  such  entry,  a  statement  signed  by  the  con- 
signor thereof,  declaring  that  the  merchandise  was  actu- 
ally purchased  by  him  or  for  his  account,  and  showing 
the  time  when,  the  place  where,  and  from  whom  he  pur- 
chased the  merchandise,  and  in  detail  the  price  he  paid 
for  the  same:  Provided,  That  the  statements  required 
by  this  section  shall  lie  made  in  triplicate,  and  shall  bear 
the  attestation  of  the  consular  officer  of  the  United 
States  resident  within  the  consular  district  wherein  the 
merchandise  was  manufactured,  if  consigned  by  the  man- 
ufacturer or  for  his  account,  or  from  whence  it  was  im- 
ported when  consigned  by  a  person  other  than  the  manu- 
facturer, one  copy  thereof  to  be  delivered  to  the  person 
making  the  statement,  one  copy  to  be  transmitted  with 
the  triplicate  invoice  of  the  merchandise  to  the  collector 
of  the  port  in  the  United  States  to  which  the  merchan- 
dise is  consigned,  and  the  remaining  copy  to  be  filed  in 
the  consulate. 

Sec1.  9.  That  if  any  owner,  importer,  consignee,  agent, 
or  other  person  shall  make  or  attempt  to  make  any  entry 
of  imported  merchandise  by  means  of  any  fraudulent  or 
false  invoice,  affidavit,  letter,  paper,  or  by  means  of  any 
f;ils<'  statement,  written  or  verbal,  or  by  means  of  any 
false  or  fraudulent  practice  or  appliance  wliaisoever,  or 


428  ADMINISTRATIVE    LAW. 

shall  be  guilty  of  any  willful  act  or  omission  by  means 
whereof  the  United  States  shall  be  deprived  of  the  law- 
ful duties,  or  any  portion  thereof,  accruing  upon  the  mer- 
chandise, or  any  portion  thereof,  embraced  or  referred 
to  in  such  invoice,  affidavit,  letter,  paper,  or  statement, 
or  affected  by  such  act  or  omission,  such  merchandise, 
or  the  value  thereof,  to  be  recovered  from  the  person 
making  the  entry,  shall  be  forfeited,  which  forfeiture 
shall  only  apply  to  the  whole  of  the  merchandise  or  the 
value  thereof  in  the  case  or  package  containing  the  par- 
ticular article  or  articles  of  merchandise  to  which  such 
fraud  or  false  paper  or  statement  relates;  and  such  per- 
son shall,  upon  conviction,  be  fined  for  each  offense  a 
sum  not  exceeding  five  thousand  dollars,  or  be  impris- 
oned for  a  time  not  exceeding  two  years,  or  both,  in  the 
discretion  of  the  court. 

Sec.  10.  That  it  shall  be  the  duty  of  the  appraisers 
of  the  United  Stales,  and  every  of  them,  and  every  per- 
son who  shall  act  as  such  appraiser,  or  of  the  collector, 
as  the  case  may  be,  by  all  reasonable  ways  and  means  in 
his  or  their  power  to  ascertain,  estimate,  and  appraise 
(any  invoice  or  affidavit  thereto  or  statement  of  cost,  or 
of  cost  of  production  to  the  contrary  notwithstanding) 
the  actual  market  value  and  wholesale  price  of  the  mer- 
chandise at  the  time  of  exportation  to  the  United  States, 
in  the  principal  markets  of  the  country  whence  the  same 
has  been  imported,  and  the  number  of  yards,  parcels, 
or  quantities,  and  actual  market  value  or  wholesale  price 
of  every  of  them,  as  the  case  may  require. 

Sec.  11.  That,  when  the  actual  market  value  as  defined 
by  law,  of  any  article  of  imported  merchandise,  wholly 
or  partly  manufactured  and  subject  to  an  ad  valorem 
duty,  or  to  a  duty  based  in  whole  or  in  part  on  value,  can 


APPENDIX.  429 

not  be  otherwise  ascertained  to  the  satisfaction  of  the 
appraising  officer,  such  officer  shall  use  all  available 
means  in  his  power  to  ascertain  the  cost  of  production 
of  such  merchandise  at  the  time  of  exportation  to  the 
United  States,  and  at  the  place  of  manufacture;  such 
cost  of  production  to  include  the  cost  of  materials  and 
of  fabrication,  all  general  expenses  covering  each  and 
every  outlay  of  whatsoever  nature  incident  to  such  pro- 
duction, together  with  the  expense  of  preparing  and  put- 
ting up  such  merchandise  read}'  for  shipment,  and  an 
addition  of  not  less  than  eight  nor  more  than  fifty  per 
centum  upon  the  total  cost  as  thus  ascertained;  and  in 
no  case  shall  such  merchandise  be  appraised  upon  orig- 
inal appraisal  or  reappraisement  at  less  than  the  total 
cost  of  production  as  thus  ascertained.  It  shall  be  law- 
ful for  appraising  officers,  in  determining  the  dutiable 
value  of  such  merchandise,  to  take  into  consideration  the 
wholesale  price  at  which  such  or  similar  merchandise 
is  sold  or  offered  for  sale  in  the  United  States,  due  allow- 
ance being  made  for  estimated  duties  thereon,  the  cost 
of  transportation,  insurance,  and  other  necessary  ex- 
penses from  the  place  of  shipment  to  the  United  States, 
and  a  reasonable  commission,  if  any  has  been  paid,  not 
exceeding  six  per  centum. 

Sec.  12.  That  there  shall  be  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate, 
nine  general  appraisers  of  merchandise,  each  of  whom 
shall  receive  a  salary  of  seven  thousand  dollars  a  year. 
Not  more  than  five  of  such  general  appraisers  shall  be 
appointed  from  the  same  political  party.  They  shall 
not  be  engaged  in  any  other  business,  avocation,  or  em- 
ployment, and  may  be  removed  from  office  at  any  time 
by  the  President  for  inefficiency,  neglect  of  duty,  or 


430  ADMINISTRATIVE    LAW. 

malfeasance  in  office.  They  shall  be  employed  at  such 
ports  and  within  such  territorial  limits,  as  the  Secretary 
of  the  Treasury  may  from  time  to  time  prescribe,  and 
are  hereby  authorized  to  exercise  the  powers,  and  duties 
devolved  upon  them  by  this  act  and  to  exercise,  under 
the  general  direction  of  the  Secretary  of  the  Treasury, 
such  other  supervision  over  appraisements  and  classifi- 
cations, for  duty,  of  imported  merchandise  as  may  be 
needful  to  secure  lawful  and  uniform  appraisements  and 
classifications  at  the  several  ports.  Three  of  the  general 
appraisers  shall  be  on  duty  as  a  board  of  general  ap- 
praisers daily  (excepl  Sunday  and  legal  holidays)  at 
the  port  of  New  York,  during  the  business  hours  pre- 
scribed by  the  Secretary  of  the  Treasury,  at  which  nort 
a  Dlace  for  samples  shall  be  provided,  under  such  rules 
and  regulations  as  the  Secretary  of  the  Treasury  may 
from  time  to  time  prescribe,  which  shall  include  rules 
as  to  the  classes  of  articles  to  be  deposited,  the  time  of 
their  relent  ion.  and  as  to  their  disposition,  which  place 
of  samples  shall  be  under  the  immediate  control  and  di- 
rection of  the  board  of  general  appraisers  on  duty  at  said 
port. 

Sec.  13.  That  the  appraiser  shall  revise  and  correct 
the  reports  of  the  assistant  appraisers  as  he  may  judge 
proper,  and  the  appraiser,  or,  at  ports  where  there  is  no 
appraiser,  the  person  acting  as  such,  shall  report  to  the 
collector  his  decision  as  to  the  value  of  the  merchan- 
dise appraised.  At  ports  where  there  is  no  appraiser, 
the  certificate  of  the  customs  officer  to  whom  is  commit- 
ted the  estimating  and  collection  of  duties,  of  the  duti- 
able value  of  any  merchandise  required  to  be  appraised, 
shall  be  deemed  and  taken  to  be  the  appraisement  of 
such  merchandise.     If  the  collector  shall  deem  the  ap- 


APPENDIX.  431 

praisement  of  any  imported  merchandise  too  low  he  may 
order  a  reappraisement,  which  shall  be  made  by  one  of 
the  general  appraisers,  or,  if  the  importer,  owner,  agent, 
or  consignee  of  such  merchandise  shall  be  dissatisfied 
with  the  appraisement  thereof,  and  shall  have  complied 
with  the  requirements  of  law  with  respect  to  the  entry 
and  appraisement  of  merchandise,  he  may,  within  two 
days  thereafter  give  notice  to  the  collector,  in  writing, 
of  such  dissatisfaction,  on  the  receipt  of  which  the  col- 
lector shall  at  once  direct  a  reappraisement  of  such  mer- 
chandise by  one  of  the  general  appraisers.  The  decision 
of  the  appraiser  or  the  person  acting  as  such  (in  cases 
where  no  objection  is  made  thereto,  either  by  the  collect- 
or or  by  the  importer,  owner,  consignee,  or  agent),  or 
of  the  general  appraiser  in  cases  of  re-appraisement, 
shall  he  final  and  conclusive  as  to  the  dutiable  value  of 
such  merchandise  against  all  parties  interested  therein, 
unless  the  importer,  owner,  consignee,  or  agent  of  the 
merchandise  shall  be  dissatisfied  with  such  decision, 
and  shall,  within  two  days  thereafter  give  notice  to  the 
collector  in  writing  of  such  dissatisfaction,  or  unless  the 
collector  shall  deem  the  appraisement  of  the  merchan- 
dise too  low,  iii  either  case  the  collector  shall  transmit 
the  invoice  and  all  the  papers  appertaining  thereto  to 
the  board  of  three  general  appraisers,  which  shall  be 
on  duty  at  the  port  of  New  York,  or  to  a  board  of  three 
general  appraisers  who  may  be  designated  by  the  Secre- 
tary of  the  Treasury  for  such  duty  at  that  port  or  at  any 
other  port,  which  board  shall  examine  and  decide  the 
case  thus  submitted,  and  their  decision,  or  that  id'  a  ma- 
jority of  them,  shall  be  final  and  conclusive  as  to  the  du- 
tiable value  of  such  merchandise  against  all  parties  in- 
terested therein,  and  the  collector  or  the  person  acting 


432  ADMINISTRATIVE    LAW. 

as  such  shall  ascertain,  fix,  and  liquidate  the  rate  and 
amount  of  duties  to  be  paid  on  such  merchandise,  and 
the  dutiable  costs  and  charges  thereon,  according  to  law. 
Sec.  14.  That  the  decision  of  the  collector  as  to  the 
rate  and  amount  of  duties  chargeable  upon  imported 
merchandise,  including  all  dutiable  costs  and  charges, 
and  as  to  all  fees  and  exactions  of  whatever  character 
(except  duties  on  tonnage  ) ,  shall  be  final  and  conclu- 
sive against  all  persons  interested  therein,  unless  the 
owner,  importer,  consignee,  or  agent  of  such  merchan- 
dise, or  the  person  paying  such  fees,  charges,  and  exac- 
tions other  than  duties,  shall,  within  ten  days  after  "but 
not  before"  such  ascertainment  and  liquidation  of  du- 
ties, as  well  in  cases  of  merchandise  entered  in  bond  as 
for  consumption,  or  within  ten  days  after  the  payment 
of  such  fees,  charges,  and  exactions,  if  dissatisfied  with 
such  decision  give  notice  in  writing  to  the  collector,  set- 
ting forth  therein  distinctly  and  specifically,  and  in  re- 
spect to  each  entry  or  payment,  the  reasons  for  his  ob- 
jections thereto,  and  if  the  merchandise  is  entered  for 
consumption  shall  pay  the  full  amount  of  the  duties 
and  charges  ascertained  to  be  due  thereon.     Upon  such 
notice  and  payment  the  collector  shall  transmit  the  in- 
voice and  all  the  papers  and  exhibits  connected  there- 
with to  the  board  of  three  general  appraisers,  which 
shall  be  on  duty  at  the  port  of  New  York,  or  to  a  board 
of  three  general  appraisers  who  may  be  designated  by 
the  Secretary  of  the  Treasury  for  such  duty  at  that  port 
or  at  any  other  port,  which  board  shall  examine  and  de- 
cide the  case  thus  submitted,  and  their  decision,  or  that 
of  a  majority  of  them,  shall  be  final  and  conclusive  upon 
all  persons  interested  therein,  and  the  record  shall  be 
transmitted  to  the  proper  collector  or  person  acting  as 


APPENDIX.  433 

such  who  shall  liquidate  the  entry  accordingly,  except 
in  cases  where  an  application  shall  be  filed  in  the  cir- 
cuit court  within  the  time  and  in  the  manner  provided 
for  in  section  fifteen  of  this  act. 

Sec.  15.  That  if  the  owner,  importer,  consignee,  or 
agent  of  any  imported  merchandise,  or  the  collector,  or 
the  Secretary  of  the  Treasury,  shall  be  dissatisfied  with 
the  decision  of  the  board  of  general  appraisers,  as  pro- 
vided for  in  section  fourteen  of  this  act,  as  to  the  ((in- 
struction of  the  law  and  the  facts  respecting  the  classi- 
fication of  such  merchandise  and  the  rate  of  duty  im- 
posed thereon  under  such  classification,  they  or  either 
of  them,  may,  within  thirty  days  next  after  such  de- 
cision, and  not  afterwards,  apply  to  the  circuit  court  of 
the  United  States  within  the  district  in  which  the  mat- 
ter arises,  for  a  review  of  the  questions  of  law  and  fact 
involved  in  such  decision.  Such  application  shall  be 
made  by  filing  in  the  office  of  the  clerk  of  said  circuit 
court  a  concise  statement  of  the  errors  of  law  and  fact 
complained  of,  and  a  copy  of  such  statement  shall  be 
served  on  the  collector,  or  on  the  importer,  owner,  con- 
signee, or  agent,  as  the  case  may  be.  Thereupon  the 
court  shall  order  the  board  of  appraisers  to  return  to 
said  circuit  court  the  record  and  the  evidence  taken  by 
them,  together  with  a  certified  statement  of  the  facts', 
involved  in  the  case,  and  their  decisions  I  hereon;  and 
all  the  evidence  taken  by  and  before  said  appraisere 
shall  be  competent  evidence  before  said  circuit  court ;  and: 
within  twenty  days  after  the  aforesaid  return  is  made 
the  court  may,  upon  the  application  of  the  Secretary  of 
the  Treasury,  the  collector  of  the  port,  or  the  importer, 
owner,  consignee,  or  agent,  as  the  case  may  be,  refer  it 
to  one  of  said  general  appraisers,  as  an  officer  of  the 

Adm.  Law— 28. 


434  ADMINISTRATIVE    LAW. 

court,  to  take  and  return  to  the  court  such  further  evi- 
dence as  may  be  offered  by  the  Secretary  of  the  Treasury, 
collector,  importer,  owner,  consignee,  or  agent,  within 
sixty  days  thereafter,  in  such  order  and  under  such  rules 
as  the  court  may  prescribe;  and  such  further  evidence 
with  the  aforesaid  returns  shall  constitute  the  record 
upon  which  said  circuit  court  shall  give  priority  to  and 
proceed  to  hear  and  determine  the  questions  of  law  and 
fact  involved   in  such  decision,  respecting  the  classifi- 
cation of  such   merchandise  and  the  rate  of  duty  im- 
posed thereon  under  such  classification,  and  the  decision 
of  such  court  shall  be  final,  and  the  proper  collector,  or 
person  acting  as  such,  shall  liquidate  the  entry  accord- 
ingly, unless  such  court  shall  be  of  opinion  that  the  ques- 
tion involved  is  of  such  importance  as  to  require  a  re- 
view of  such  decision  by  the  Supreme  Court  of  the  United 
States,  in  which   case  said  circuit  court,  or  the  judge 
making  the  decision  may,  within  thirty  days  thereafter, 
allow  an  appeal  to  said  Supreme  Court;  hut  an  appeal 
shall  be  allowed  on  the  part  of  the  United  States  when- 
ever the  Attorney-General  shall  apply  for  it  within  thir- 
ty days  after  the  rendition  of  such  decision.     On  such 
original  application,  and  on  any  such  appeal,  security 
for  damages  and  costs  shall  be  given  as  in  the  case  of 
other  appeals  in  cases  in  which  the  United  States  is  a 
party.     Said  Supreme  Court  shall  have  jurisdiction  and 
power  to  review  such  decision,  and  shall  give  priority 
to  such  cases,  and  may  affirm,  modify,  or  reverse  such  de- 
cision of  such  circuit  court,  and  remand  the  case  with 
such  orders  as  may  seem  to  it  proper  in  the  premises, 
which  shall  be  executed  accordingly.     All   final   judg- 
ments, when  in  favor  of  the  importer,  shall  be  satisfied 
and  paid  by  the  Secretary  of  the  Treasury  from  the  per- 


APPENDIX.  435 

manent  indefinite  appropriation  provided  for  in  section 
twenty-three  of  this  act.  For  the  purposes  of  this  sec- 
tion the  circuit  courts  of  the  United  States  shall  be 
deemed  always  open,  and  said  circuit  courts,  respective- 
ly, may  establish,  and  from  time  to  time  alter,  rules  and 
regulations  not  inconsistent  herewith  for  the  procedure 
in  such  cases  as  they  shall  deem  proper. 

Sec.  16.  That  the  general  appraisers,  or  any  of  them, 
arc  hereby  authorized  to  administer  oaths,  and  said  gen- 
eral appraisers,  the  boards  of  general  appraisers,  the  lo- 
cal appraisers  or  the  collectors,  as  the  case  may  be,  may 
cite  to  appear  before  them,  and  examine  upon  oath  any 
owner,  importer,  agent,  consignee,  or  other  person  touch- 
ing any  matter  or  thing  which  they,  or  either  of  them, 
may  deem  material  respecting  any  imported  merchan- 
dise, in  ascertaining  the  dutiable  value  or  classifica- 
tion thereof;  and  they,  or  either  of  them,  may  require 
the  production  of  any  letters,  accounts,  or  invoices  re- 
lating to  said  merchandise,  and  may  require  such  tes- 
timony to  be  reduced  to  writing,  and  when  so  taken  it 
shall  be  filed  in  the  office  of  the  collector,  and  preserved 
for  use  or  reference  until  the  final  decision  of  the  col- 
lector or  said  board  of  appraisers  shall  be  made  respect- 
ing the  valuation  or  classification  of  said  merchandise, 
as  the  cas<-  may  be. 

Sec.  17.  That  if  any  person  so  cited  to  appear  shall 
neglect  or  refuse  to  attend,  or  shall  decline  to  answer, 
or  shall  refuse  to  answer  in  writing  any  interrogatories, 
and  subscribe  his  name  to  his  deposition,  or  to  produce 
such  papers,  when  so  required  by  a  general  appraiser, 
or  a  board  of  general  appraisers,  or  a  local  appraiser 
or  a  collector,  he  shall  be  liable  to  a  penalty  of  one  hun- 
dred dollars;  and  if  such  person  be  the  owner,  import- 


436  ADMINISTRATIVE    LAW. 

er,  or  consignee,  the  appraisement  which  the  general 
appraiser,  or  board  of  general  appraisers,  or  local  ap- 
praiser, or  collector,  where  there  is'  no  appraiser,  may 
make  of  the  merchandise,  shall  be  final  and  conclusive ; 
and  any  person  who  shall  willfully  and  corruptly  swear 
falsely  on  an  examination  before  any  general  appraiser, 
or  board  of  general  appraisers,  or  local  appraiser,  or  col- 
lector, shall  be  deemed  guilty  of  perjury;  and  if  he  is 
the  owner,  importer,  or  consignee,  the  merchandise  shall 
be  forfeited. 

Sec.  18.  That  all  decisions  of  the  general  appraisers 
and  of  the  boards  of  general  appraisers,  respecting 
values  and  rates  of  duty,  shall  be  preserved  and  filed, 
and  shall  be  open  to  inspection  under  proper  regula- 
tions to  be  prescribed  by  the  Secretary  of  the  Treasury. 
All  decisions  of  the  general  appraisers  shall  be  reported 
forthwith  to  the  Secretary  of  the  Treasury  and  to  the 
board  of  general  appraisers  on  duty  at  the  port  of  New 
York,  and  the  report  to  the  board  shall  be  accompanied, 
whenever  practicable,  by  samples  of  the  merchandise  in 
question,  and  it  shall  be  the  duty  of  the  said  board,  un- 
der the  direction  of  the  Secretary  of  the  Treasury,  to 
cause  an  abstract  to  be  made  and  published  of  such  de- 
cisions of  the  appraisers  as  they  may  deem  important, 
and  of  the  decisions  of  each  of  the  general  appraisers 
and  boards  of  general  appraisers,  which  abstract  shall 
contain  a  general  description  of  the  merchandise  in  ques- 
tion, and  of  the  value  and  rate  of  duty  fixed  in  each  case, 
with  reference,  whenever  practicable,  by  number  or  oth- 
er designation,  to  samples  deposited  in  the  place  of 
samples  at  New  York,  and  such  abstract  shall  be  issued 
from  time  to  time,  at  least  once  in  each  week,  for  the 
information  of  customs  officers  and  the  public. 


APPENDIX.  437 

Sec.  19.  That  whenever  imported  merchandise  is  sub- 
ject to  an  ad  valorem  rate  of  duty,  or  to  a  duty  based 
upon  or  regulated  in  any  manner  by  the  value  thereof, 
the  duty  shall  be  assessed  upon  the  actual  market  value 
or  wholesale  price  of  such  merchandise  as  bought  and 
sold  in  usual  wholesale  quantities,  at  the  time  of  ex- 
portation to  the  United  States,  in  the  principal  markets 
of  the  country  from  whence  imported,  and  in  the  con- 
dition in  which  such  merchandise  is  there  bought  and 
sold  for  exportation  to  the  United  States,  or  consigned 
to  the  United  States  for  sale,  including  the  value  of  all 
cartons,  cases,  crates,  boxes,  sacks,  and  coverings  of 
any  kind,  and  all  other  costs,  charges  and  expenses  inci- 
dent to  placing  the  merchandise  in  condition,  packed 
ready  for  shipment  to  the  United  States,  and  if  there  be 
used  for  covering  or  holding  imported  merchandise, 
whether  dutiable  or  free,  any  unusual  article  or  form  de- 
signed for  use  otherwise  than  in  the  bona  fide  transporta- 
tion of  such  merchandise  to  the  United  States,  additional 
duty  shall  be  levied  and  collected  upon  such  material  or 
article  at  the  rate  to  which  the  same  would  be  subject 
if  separately  imported.  That  the  words  "value"  or 
"actual  market  value"  whenever  used  in  this  act  or  in 
any  law  relating  to  the  appraisement  of  imported  mer- 
chandise shall  be  construed  to  mean  the  actual  market 
value  or  wholesale  price  as  defined  in  this  section. 

Sec.  20.  Any  merchandise  deposited  in  any  public  or 
private  bonded-warehouse  may  be  withdrawn  for  con- 
sumption within  three  years  from  the  date  of  original 
importation,  on  payment  of  the  duties  and  charges  to 
which  it  may  be  subject  by  law  at  the  time  of  such  with- 
drawal :  Provided,  That  nothing  herein  shall  affect  or 
impair  existing  provisions  of  law  in  regard  to  the  dis- 
posal of  perishable  or  explosive  articles. 


438  ADMINISTRATIVE    LAW. 

Sec.  21.  That  in  all  suits  or  informations  brought, 
where  any  seizure  has  been  made  pursuant  to  any  act 
providing  for  or  regulating  the  collection  of  duties  on 
imports  or  tonnage,  if  the  property  is  claimed  by  any 
person,  the  burden  of  proof  shall  lie  upon  such  claimant : 
Provided,  That  probable  cause  is  shown  for  such  prose- 
cution, to  be  judged  of  by  the  court. 

Sec.  22.  That  all  fees  exacted  and  oaths  administered 
by  officers  of  the  customs,  except  as  provided  in  this 
act,  under  or  by  virtue  of  existing  laws  of  the  United 
States,  upon  the  entry  of  imported  goods  and  the  pass- 
ing thereof  through  the  customs,  and  also  upon  all  en- 
tries of  domestic  goods,  wares,  and  merchandise  for  ex- 
portation, be,  and  the  same  are  hereby,  abolished ;  and 
in  case  of  entry  of  merchandise  for  exportation,  a  dec- 
laration, in  lieu  of  an  oath,  shall  be  filed,  in  such  form 
and  under  such  regulations  as  may  be  prescribed  by  the 
Secretary  of  the  Treasury;  and  the  penalties  provided 
in  the  sixth  section  of  this  act  for  false  statements  in 
such  declaration  shall  be  applicable  to  declarations  made 
under  this  section:  Provided,  That  where  such  fees, 
under  existing  laws,  constitute,  in  whole  or  in  part,  the 
compensation  of  any  officer,  such  officer  shall  receive, 
from  and  after  the  passage  of  this  act,  a  fixed  sum  for 
each  year  equal  to  the  amount  which  he  would  have  been 
entitled  to  receive  as  fees  for  such  services  during  said 
year. 

Sec.  23.  That  no  allowance  for  damage  to  goods,  wares, 
and  merchandise  imported  into  the  United  States  shall 
hereafter  be  made  in  the  estimation  and  liquidation  of 
duties  thereon ;  but  the  importer  thereof  may,  within 
ten  days  after  entry,  abandon  to  the  United  States  all  or 
any  portion  of  goods,  wares,  and  merchandise  included 


APPENDIX.  439 

in  any  invoice,  and  be  relieved  from  the  payment  of  the 
duties  on  the  portion  so  abandoned:  Provided,  That 
the  portion  so  abandoned  shall  amount  to  ten  per  centum 
or  over  of  the  total  value  or  quantity  of  the  invoice; 
and  the  property  so  abandoned  shall  be  sold  by  public 
auction  or  otherwise  disposed  of  for  the  account  and 
credit  of  the  United  States  under  such  regulations  as 
the  Secretary  of  the  Treasury  may  prescribe.  All  mer- 
chandise so  abandoned  by  the  importer  thereof  shall  be 
delivered  by  such  importer  at  such  place  within  the  port 
of  arrival  as  the  chief  officer  of  customs  may  direct,  and 
on  the  failure  of  the  importer  to  comply  with  the  direc- 
tions of  the  collector  in  this  respect  the  abandoned  mer- 
chandise shall  be  disposed  of  by  the  collector  at  the  ex- 
pense of  such  importer. 

Sec.  24.  That  whenever  it  shall  be  shown  to  the  sat- 
isfaction of  the  Secretary  of  the  Treasury  that,  in  any 
case  of  unascertained  or  estimated  duties,  or  payments 
made  upon  appeal,  more  money  has  been  paid  to  or  depos- 
ited with  a  collector  of  customs  than,  as  has  been  as- 
certained by  final  liquidation  thereof,  the  law  required 
to  be  paid  or  deposited,  the  Secretary  of  the  Treasury 
shall  direct  the  Treasurer  to  refund  and  pay  the  same 
out  of  any  money  in  the  Treasury  not  otherwise  appro- 
priated. The  necessary  moneys  therefor  are  hereby 
appropriated,  and  this  appropriation  shall  be  deemed  a 
permanent  indefinite  appropriation;  and  the  Secretary 
of  the  Treasury  is  hereby  authorized  to  correct  manifest 
clerical  errors  in  any  entry  or  liquidation,  for  or  against 
the  United  States,  at  any  time  within  one  year  of  the 
date  of  such  entry,  but  not  afterwards :  Provided,  That 
the  Secretary  of  the  Treasury  shall  in  his  annual  re] nut 
to  Congress,  give  a  detailed  statement  of  the  various 


440  ADMINISTRATIVE    LAW. 

sums  of  money  refunded  under  the  provisions  of  this  act 
or  of  any  other  act  of  Congress  relating  to  the  revenue, 
together  with  copies  of  the  rulings  under  which  repay- 
ments were  made. 

Sec.  25.  That  from  and  after  the  taking  effect  of  this 
act  no  collector  or  other  officers  of  the  customs  shall  be 
in  any  way  liable  to  any  owner,  importer,  consignee,  or 
agent  of  any  merchandise,  or  any  other  person,  for  or 
on  account  of  any  rulings  or  decisions  as  to  the  classifi- 
cation of  said  merchandise  or  the  duties  charged  there- 
on, or  the  collection  of  any  dues,  charges,  or  duties  on  or 
on  account  of  said  merchandise,  or  any  other  matter  or 
thing  as  to  which  said  owner,  importer,  consignee,  or 
agent  of  such  merchandise  might,  under  this  act,  be  en- 
titled to  appeal  from  the  decision  of  said  collector  or 
other  office]-,  or  from  any  board  of  appraisers  providedfor 
in  this  act. 

Sec  26.  That  any  person  who  shall  give,  or  offer  to 
give  or  promise  to  give  any  money  or  thing  of  value,  di- 
rectly or  indirectly,  to  any  officer  or  employee  of  the 
United  States  in  consideration  of  or  for  any  act  or  omis- 
sion contrary  to  law  in  connection  with  or  pertaining  to 
the  importation,  appraisement,  entry,  examination,  or 
inspection  of  goods,  wares,  or  merchandise  including 
herein  any  baggage,  or  of  the  liquidation  of  the  entry 
thereof,  or  shall  by  threats  or  demands,  or  promises  of 
any  character  attempt  to  improperly  influence  or  con- 
trol any  such  officer  or  employee  of  the  United  States 
as  to  the  performance  of  his  official  duties  shall,  on  con- 
viction thereof,  be  fined  not  exceeding  two  thousand  dol- 
lars, or  be  imprisoned  at  hard  labor  not  more  than  one 
year,  or  both,  in  the  discretion  of  the  court ;  and  evidence 
of  such  giving,  or  offering,  or  promising  to  give,  satis- 


APPENDIX.  441 

factory  to  the  court  in  which  such  trial  is  had,  shall  be 
regarded  as  prima  facie  evidence  that  such  giving  or  of- 
fering or  promising  was  contrary  to  law,  and  shall  put 
upon  the  accused  the  burden  of  proving  that  such  act 
was  innocent,  and  not  done  with  an  unlawful  intention. 

Sec.  27.  That  any  officer  or  employee  of  the  United 
States  who  shall,  excepting  for  lawful  duties  or  fees, 
solicit,  demand,  exact  or  receive  from  any  person,  direct- 
ly or  indirectly,  any  money  or  thing  of  value,  in  con- 
nection with  or  pertaining  to  the  importation,  apprais- 
ment,  entry,  examination,  or  inspection  of  goods,  wares, 
or  merchandise,  including  herein  any  baggage,  or  liqui- 
dation of  the  entry  thereof,  on  conviction  thereof,  shall 
be  fined  not  exceeding  five  thousand  dollars,  or  be  im- 
prisoned at  hard  labor  not  more  than  two  years,  or  both, 
in  the  discretion  of  the  court.  And  evidence  of  such  so- 
liciting, demanding,  exacting,  or  receiving,  satisfactory 
to  the  court  in  which  such  trial  is  had,  shall  be  regarded 
as  prima  facie  evidence  that  such  soliciting,  demanding, 
exacting,  or  receiving  was  contrary  to  law,  and  shall  put 
upon  the  accused  the  burden  of  proving  that  such  act 
was  innocent  and  not  with  an  unlawful  intention. 

Sec.  28.  That  any  baggage  or  personal  effects  arriv- 
ing in  the  United  States  in  transit  to  any  foreign  country 
may  be  delivered  by  the  parties  having  it  in  charge  to 
the  collector  of  the  proper  district,  to  be  by  him  retained, 
without  the  payment  or  exaction  of  any  import  duty,  or 
to  be  forwarded  by  such  collector  to  the  collector  of  the 
port  of  departure  and  to  be  delivered  to  such  parties  on 
their  departure  for  their  foreign  destination,  under  such 
rules  and  regulations  as  the  Secretary  of  the  Treasury 
may  prescribe. 

Sec.  2!).  That  sections  twenty-six  hundred  and  eight, 


442  ADMINISTRATIVE    LAW. 

twenty-eight  hundred  and  thirty-eight,  twenty-eight  hun- 
dred and  thirty-nine,  twenty-eight  hundred  and  forty- 
one,  twenty-eight  hundred  and  forty-three,  twenty-eight 
hundred  and  forty-five,  twenty-eight  hundred  and  fifty- 
three,  twenty-eight  hundred  and  fifty-four,  twenty-eight 
hundred  and  fifty-six,  twenty-eight  hundred  and  fifty- 
eight,  twenty-eight  hundred  and  sixty,  twenty-nine  hun- 
dred, and  twenty-nine  hundred  and  two,  twenty-nine 
hundred  and  five,  twenty-nine  hundred  and  seven, 
twenty-nine  hundred  and  eight,  twenty-nine  hundred 
and  nine,  twenty-nine  hundred  and  twenty-two,  twen- 
ty-nine hundred  and  twenty-three,  twenty-nine  hun- 
dred and  twenty-four,  twenty-nine  hundred  and  twen- 
ty-seven, twenty-nine  hundred  and  twenty-nine,  twen- 
ty-nine hundred  and  thirty,  twenty-nine  hundred  and 
thirty-one,  twenty-nine  hundred  and  thirty-two,  twen- 
ty-nine hundred  and  forty-three,  twenty-nine  hun- 
dred and  forty-five,  twenty-nine  hundred  and  fifty-two, 
three  thousand  and  eleven,  three  thousand  and  twelve, 
three  thousand  and  twelve  and  one-half,  three  thousand 
and  thirteen,  of  the  Revised  Statutes  <>f  the  United 
States,  he,  and  the  same  are  hereby,  repealed,  and  sec- 
tions nine,  ten,  eleven,  twelve,  fourteen,  and  sixteen  of 
an  act  entitled  "An  act  to  amend  the  customs-revenue 
laws  and  to  repeal  moieties/'  approved  June  twenty- 
second,  eight  hundred  and  seventy-four,  and  sections 
seven,  eight,  and  nine  of  the  act  entitled  "An  act  to  re- 
duce internal-revenue  taxation,  and  for  other  purposes," 
approved  March  third,  eighteen  hundred  and  eighty- 
three,  and  all  other  acts  aud  parts  of  acts  inconsistent 
with  the  provisions  of  this  act,  are  herehy  repealed,  hut 
the  repeal  of  existing  laws  or  modifications  thereof  em- 
braced in  this  act  shall  not  affect  any  act  done,  or  anv 


APPENDIX.  443 

right  accruing  or  accrued,  or  any  suit  or  proceeding  had 
or  commenced  in  any  civil  cause  before  the  said  repeal 
or  modifications;  but  all  rights  and  liabilities  under  said 
laws  shall  continue  and  may  be  enforced  in  the  same 
manner  as  if  said  repeal  or  modifications  had  not  been 
made.  Any  offenses  committed,  and  all  penalties  or  for- 
feitures or  liabilities  incurred  prior  to  the  passage  of 
this  act  under  any  statute  embraced  in  or  changed,  modi- 
fied, or  repealed  by  this  act  may  be  prosecuted  and  pun- 
ished in  the  same  manner  and  with  the  same  effect  as  if 
this  act  had  not  been  passed.  All  acts  of  limitation, 
whether  applicable  to  civil  causes  and  proceedings  or  to 
the  prosecution  of  offenses  or  for  the  recovery  of  penal- 
ties or  forfeitures  embraced  in  or  modified,  changed,  or 
repealed  by  this  act,  shall  not  be  affected  thereby;  and 
all  suits,  proceedings,  or  prosecutions,  whether  civil  or 
criminal,  for  causes  arising  or  acts  done  or  committed 
prior  to  the  passage  of  this  act,  may  be  commenced  and 
prosecuted  within  the  same  time  and  with  the  same  ef- 
fect as  if  this  act  had  not  been  passed.  And  provided 
further,  That  nothing  in  this  act  shall  be  construed  to 
repeal  the  provisions  of  section  three  thousand  and  fifty- 
eight  of  the  Revised  Statutes  as  amended  by  the  act  ap- 
proved February  twenty-third,  eighteen  hundred  and 
eighty-seven,  in  respect  to  the  abandonment  of  merchan- 
dise to  underwriters  or  the  salvors  of  property,  and  the 
ascertainment  of  duties  thereon. 

Sec.  30.  That  this  act  shall  take  effect  on  the  first  day 
of  August,  eighteen  hundred  and  ninety,  except  so  much 
of  section  twelve  as  provides  for  the  appointment  of  nine 
general  appraisers,  which  shall  take  effect  immediately. 

Approved,  June  10,  1890. 


APPENDIX  D. 

RULES  OF  PRACTICE  IN  THE  UNITED  STATES 
PATENT  OFFICE. 

CORRESPONDENCE. 

1.  All  business  with  the  office  should  be  transacted  in 
writing-.  Unless  by  the  consent  of  all  parties,  the  action 
of  the  office  will  be  based  exclusively  on  the  written  rec- 
ord. No  attention  will  be  paid  to  any  alleged  oral  prom- 
ise, stipulation,  or  understanding  in  relation  to  which 
there  is  a  disagreement  or  doubt. 

2.  All  office  letters  must  be  sent  in  the  name  of  the 
"Commissioner  of  Patents."  All  letters  and  other  com- 
munications intended  for  the  office  must  be  addressed 
to  him;  if  addressed  to  any  of  the  other  officers,  they 
will  ordinarily  be  returned. 

3.  Express  charges,  freight,  postage,  and  all  other 
charges  on  matter  sent  to  the  Patent  Office  must  be  pre- 
paid in  full ;  otherwise  it  will  not  be  received. 

4.  The  personal  attendance  of  applicants  at  the  Pat- 
ent Office  is  unnecessary.  Their  business  can  be  trans- 
acted by  correspondence. 

5.  The  assignee  of  the  entire  interest  of  an  invention 
is  entitled  to  hold  correspondence  with  the  office  to  the 
exclusion  of  the  inventor.      ( See  Rule  20. ) 

6.  When  there  has  been  an  assignment  of  an  undivid- 
ed part  of  an  invention,  amendments  and  other  actions 
requiring  the  signature  of  the  inventor  must  also  receive 
the  written  assent  of  the  assignee ;  but  official  letters  will 


APPENDIX.  445 

only  be  sent  to  the  post-office  address  of  the  inventor, 
unless  he  shall  otherwise  direct. 

7.  When  an  attorney  shall  have  filed  his  power  of  at- 
torney, duly  executed,  the  correspondence  will  be  held 
with  him. 

8.  A  double  correspondence  with  the  inventor  and  an 
assignee,  or  with  a  principal  and  his  attorney,  or  with 
two  attorneys,  cannot  generally  be  allowed. 

9.  A  separate  letter  should  in  every  case  be  written 
in  relation  to  each  distinct  subject  of  inquiry  or  appli- 
cation..  Assignments  for  record,  final  fees,  and  orders 
for  copies  or  abstracts  must  be  sent  to  the  office  in  sepa- 
rate letters. 

Papers  sent  in  violation  of  this  rule  will  be  returned. 

10.  When  a  letter  concerns  an  application,  it  should 
state  the  name  of  the  applicant,  the  title  of  the  invention, 
the  serial  number  of  the  application  (see  Rule  31),  and 
the  date  of  filing  the  same.      ( See  Rule  32. ) 

11.  When  the  letter  concerns  a  patent  it  should  state 
the  name  of  the  patentee,  the  title  of  the  invention, 
and  the  number  and  date  of  the  patent. 

12.  No  attention  will  be  paid  to  unverified  ex  parte 
statements  or  protests  of  persons  concerning  pending- 
applications  to  which  they  are  not  parties,  unless  in- 
formation of  the  pendency  of  such  applications  shall 
have  been  voluntarily  communicated  by  the  applicants. 

13.  Letters  received  at  the  office  will  be  answered,  and 
orders  for  printed  copies  filled,  without  unnecessary  de- 
lay. Telegrams,  if  not  received  before  3  o'clock  p.  m., 
can  not  ordinarily  be  answered  until  the  following  day. 

[NFORMATION  TO   COEEESPONDENTS. 

14.  The  office  can  not  respond  to  inquiries  as  to  Mm 
novelty  of  an  alleged  invention  in  advance  of  the  filing 


446  ADMINISTRATIVE    LAW. 

of  an  application  for  a  patent,  nor  to  inquiries  pro- 
pounded with  a  view  to  ascertaining  whether  any  alleged 
improvements  have  been  patented,  and,  if  so,  to  whom; 
nor  can  it  act  as  an  expounder  of  the  patent  law,  nor  as 
counsellor  for  individuals,  except  as  to  questions  arising 
within  the  office. 

Of  the  propriety  of  making  an  application  for  a  patent, 
the  inventor  must  judge  for  himself.  The  office  is  open 
to  him,  and  its  records  and  models  pertaining  to  all  pat- 
ents granted  may  be  inspected  either  by  himself  or  by 
any  attorney  or  expert  he  may  call  to  his  aid,  and  its  re- 
ports are  widely  distributed.  (See  Rule  210.  i  Fur- 
ther than  this  the  office  can  render  him  no  assistance 
until  his  case  comes  regularly  before  it  in  the  manner 
prescribed  by  law.  A  copy  of  the  rules,  with  this  sec- 
tion marked,  sent  to  the  individual  making  an  inquiry 
of  the  character  referred  to,  is  intended  as  a  respectful 
answer  by  the  office. 

Examiners'  digests  are  not  open  to  public  inspection. 

15.  Caveats  and  pending  applications  are  preserved 
in  secrecy.  Xo  information  will  be  given,  without  au- 
thority, respecting  the  filing  by  any  particular  person 
of  a  caveat  or  of  an  application  for  a  patent  or  for  the 
reissue  of  a  patent,  the  pendency  of  any  particular  case 
before  the  office,  or  the  subject-matter  of  any  particular 
application,  unless  it  shall  be  necessary  to  the  proper 
conduct  of  business  before  the  office,  as  provided  by  Rules 
97,  103,  and  108. 

1G.  After  a  patent  has  issued,  the  model,  specification, 
drawings,  and  all  documents  relating  to  the  case  are  sub- 
ject to  general  inspection,  and  copies,  except  of  the  model, 
will  be  furnished  at  the  rates  specified  in  Rule  204. 


APPENDIX.  447 

ATTORNEYS. 

17.  An  applicant  or  an  assignee  of  the  entire  interest 
may  prosecute  his  own  ease,  but  lie  is  advised,  unless  fa- 
miliar with  such  matters,  to  employ  a  competent  attor- 
ney, as  the  value  of  patents  depends  largely  upon  the 
skillful  preparation  of  the  specification  and  claims.  The 
office  can  not  aid  in  the  selection  of  an  attorney. 

A  register  of  attorneys  will  he  kept  in  this  office,  on 
which  will  he  entered  the  names  of  all  persons  entitled  to 
represent  applicants  before  the  Patent  Office  in  the  pres- 
entation and  prosecution  of  applications  for  patent. 
The  names  of  persons  in  the  following  classes  will,  upon 
their  written  request,  be  entered  upon  this  register. 

i  a  i  Any  person  who  on  June  18.  1897,  was  engaged  as 
attorney  or  agent  in  the  active  prosecution  of  applica- 
tions for  patent  before  this  office,  or  had  been  so  engaged 
at  any  time  within  five  years  prior  thereto  and  is  not  dis- 
barred, or  is  or  was  during  such  period  a  member  of  a 
firm  so  engaged  and  not  disbarred,  provided  that  such 
person  shall,  if  required,  furnish  information  as  to  one  or 
more  applications  for  patent  so  prosecuted  by  him. 

(&)  Any  attorney  at  law  who  is  in  good  standing  in 
any  court  of  record  in  the  United  States  or  any  of  the 
States  or  Territories  thereof  and  shall  furnish  a  certifi- 
cate of  the  clerk  of  such  United  States,  State  or  Territor- 
ial court,  duly  authenticated  under  the  seal  of  the  court, 
that  he  is  an  attorney  in  good  standing. 

(c)  Any  person  who  has  been  regularly  recognized  as 
an  attorney  or  agent  to  represent  claimants  before  the 
Department  of  the  Interior  or  any  bureau  thereof  and  is 
in  good  standing,  provided  thai  such  person  shall  furnish 
a  statement  of  the  date  of  his  admission  to  practice  as 
such   attorney  or  agent,   and   shall   further  show,   if  re- 


448  ADMINISTRATIVE    LAW. 

quired  by  the  Commissioner,  that  lie  is  possessed  of  the 
necessary  qualifications  to  render  applicants  for  patents 
valuable  service  and  is  otherwise  competent  to  advise 
and  assist  them  in  the  presentation  and  prosecution  of 
their  applications  before  the  Patent  Office. 

(d)  Any  person  not  an  attorney  at  law  who  shall  file 
a  certificate  from  a  judge  of  a  United  States,  State,  or 
Territorial  court,  duly  authenticated  under  the  seal  of 
the  court,  that  such  person  is  of  good  moral  character  and 
of  good  repute  and  possessed  of  the  necessary  qualifica- 
tions to  enable  him  to  render  applicants  for  patents  val- 
uable service,  and  is  otherwise  competent  to  advise  and 
assist  them  in  the  presentation  and  prosecution  of  their 
applications  before  the  Patent  Office. 

(e)  Any  firm  which  on  June  18,  18;»7.  was  engaged  in 
the  active  prosecution  as  attorneys  or  agents  of  applica- 
tions for  patents  before  the  Patent  Office,  or  had  been  so 
engaged  at  any  time  within  live  years  prior  thereto,  pro- 
vided such  firm  or  any  member  thereof  is  not  disbarred, 
provided  the  names  of  the  individuals  composing  the  firm 
are  stated,  and  provided,  also,  that  such  firm  shall,  if  re- 
quired, furnish  information  as  to  one  or  more  applica- 
tions prosecuted  before  the  Patent  Office  by  them. 

(/)  Any  firm  not  entitled  to  registration  under  the  pre- 
ceding sections  which  shall  show  that  the  individuals 
composing  the  firm  are  each  and  all  recognized  as  patent 
attorneys  or  agents  or  are  each  and  all  entitled  to  be  so 
recognized  under  the  preceding  sections  of  this  rule 

The  Commissioner  may  demand  additional  proof  of 
qualifications  and  reserves  the  right  to  decline  to  recog- 
nize any  attorney,  agent,  or  other  person  applying  for 
registration  under  this  rule. 

Any  person  or  firm  not  registered  and  not  entitled  to 


APPENDIX.  449 

be  recognized  under  this  rule  as  an  attorney  or  agent  to 
represent  applicants  generally  may,  upon  a  showing  of 
circumstances  which  render  it  neccssarv  or  justifiable, 
be  recognized  by  the  Commissioner  to  prosecute  as  at- 
torney or  agent  certain  specified  application  or  applica- 
tions, but  this  limited  recognition  shall  not  extend  fur- 
ther than  the  application  or  applications  named. 

Xo  person  not  registered  as  above  provided  will  be 
permitted  to  prosecute  applications  before  the  Patent 
Office. 

18.  Before  any  attorney,  original  or  associate,  will  be 
allowed  to  inspect  papers  or  take  action  of  any  kind,  his 
power  of  attorney  must  be  filed.  But  general  powers 
given  by  a  principal  to  an  associate  can  not  be  considered. 
In  each  application  the  written  authorization  must  be 
filed.  A  power  of  attorney  purporting  to  have  been  giv- 
en to  a  firm  or  copartnership  will  not  be  recognized, 
either  in  favor  of  the  firm  or  of  any  of  its  members,  un- 
less all  its  members  shall  be  named  in  such  power  of  at- 
torney. 

19.  Substitution  or  association  can  be  made  by  an  at- 
torney upon  the  written  authorization  of  his  principal ; 
but  such  authorization  will  not  empower  the  second 
agent  to  appoint  a  third. 

20.  Powers  of  attorney  may  be  revoked  at  any  stage  in 
the  proceedings  of  a  ease  upon  application  to  and  ap- 
proval by  the  Commissioner;  and  when  so  revoked  the 
office  will  communicate  directly  with  the  applicant,  or 
such  other  attorney  as  he  may  appoint.  An  attorney 
will  be  promptly  notified  by  the  docket  clerk  of  the  revo- 
cation of  his  power  of  attorney.  An  assignment  of  an 
undivided  interest  will  not  operate  as  a  revocation  <>f  the 

Adm.  Law— 29. 


450  ADMINISTRATIVE    LAW. 

power  previously  given;  but  the  assignee  of  the  entire  in- 
terest may  be  represented  by  an  attorney  of  his  own  se- 
lection. 

21.  Parties  or  their  attorneys  will  be  permitted  to 
examine  their  cases  in  the  attorney's  room,  but  not  in 
the  rooms  of  the  examiners.  Personal  interviews  with 
examiners  will  be  permitted  only  as  hereinafter  provided. 
(See  Rule  152.) 

22.  (a)  Applicants  and  attorneys  Avill  be  required  to 
conduct  their  business  with  the  office  with  decorum  and 
courtesy.  Papers  presented  in  violation  of  this  require- 
ment will  be  returned.  But  all  such  papers  will  first  be 
submitted  to  the  Commissioner,  and  only  returned  by 
his  direct  order. 

(6)  Complaints  against  examiners  and  other  officers 
must  be  made  in  separate  communications,  and  will  be 
promptly  investigated. 

(c)  For  gross  misconduct  the  Commissioner  may  re- 
fuse to  recognize  any  person  as  a  patent  agent,  either  gen- 
erally or  in  any  particular  case;  but  the  reasons  for  such 
refusal  will  be  duly  recorded  and  be  subject  to  the  ap- 
proval of  the  Secretary  of  the  Interior. 

23.  Inasmuch  as  applications  can  not  be  examined  out 
of  their  regular  order,  except  in  accordance  with  the  pro- 
visions of  Rule  63,  and  members  of  Congress  can  neither 
examine  nor  act  in  patent  cases  without  written  powers 
of  attorney,  applicants  are  advised  not  to  impose  upon 
Senators  or  Representatives  labor  which  will  consume 
their  time  without  any  advantageous  results. 

APPLICANTS. 

24.  A  patent  may  be  obtained  by  any  person  who  has 
invented  or  discovered  any  new  and  useful  art,  machine, 


APPENDIX.  451 

manufacture,  or  composition  of  matter,  or  any  new  and 
useful  improvement  thereof,  not  known  or  used  by  others 
in  this  country  before  his  invention  or  discovery  thereof, 
and  not  patented  or  described  in  any  printed  publication 
in  this  or  any  foreign  country  before  his  invention  or  dis- 
covery thereof,  or  more  than  two  years  prior  to  his  appli- 
cation, and  not  patented  in  a  country  foreign  to  the 
United  States  on  an  application  filed  more  than  twelve 
months  before  his  application,  and  not  in  public  use  or  on 
sale  in  the  United  States  for  more  than  two  years  prior  to 
his  application,  unless  the  same  is  proved  to  have  been 
abandoned,  upon  payment  of  the  fees  required  by  law 
and  other  due  proceedings  had.  (For  designs,  see  Rule 
79.) 

25.  In  case  of  the  death  of  the  inventor,  the  application 
will  be  made  by  and  the  patent  will  issue  to  his  executor 
or  administrator.  In  such  case  the  oath  required  by 
Rule  16  will  be  made  by  the  executor  or  administrator. 
In  case  of  the  death  of  the  inventor  during  the  time  in- 
tervening between  the  filing  of  his  application  and  the 
granting  of  a  patent  thereon,  the  letters  patent  will 
issue  to  the  executor  or  administrator  upon  proper  inter- 
vention by  him. 

///  case  an  inventor  becomes  insane,  the  application 
may  he  made  by  <m<l  the  patent  issued  to  his  le<i<illji  ap- 
pointed guardian,  conservator,  or  representative,  who 
will  male  the  oath  required  by  Rule  '/6. 

20.  In  case  of  an  assignment  of  the  whole  interest  in 
the  invention,  or  of  the  whole  interest  in  the  patent  to  be 
granted,  the  patent  will,  upon  request  of  the  applicant 
embodied  in  (he  assignment,  issue  to  the  assignee;  and  if 
(he  assignee  hold  an  undivided  part  interest,  (he  patent 
will,  upon  like  request,  issue  jointly  to  the  inventor  and 


452  ADMINISTRATIVE    LAW. 

the  assignee ;  but  the  assignment  in  either  case  must  first 
have  been  entered  of  record,  and  at  a  day  not  later  than 
the  date  of  the  payment  of  the  final  fee  (see  Rule  201)  ; 
and  if  it  be  dated  subsequently  to  the  execution  of  the 
application,  it  must  give  the  date  of  execution  of  the  ap- 
plication, or  the  date  of  filing,  or  the  serial  number,  so 
that  there  can  be  no  mistake  as  to  the  particular  inven- 
tion intended.  The  application  and  oath  must  be  signed 
by  the  actual  inventor,  if  alive,  even  if  the  patent  is  to 
issue  to  an  assignee  (see  Rules  30,  40)  ;  if  the  inventor  be 
dead,  the  application  may  be  made  by  the  executor  or 
administrator. 

27.  If  it  appear  that  the  inventor,  at  the  time  of  mak- 
ing his  application,  believed  himself  to  be  the  first  invent- 
or or  discoverer,  a  patent  will  not  be  refused  on  account 
of  the  invention  or  discovery,  or  any  part  thereof,  having 
been  known  or  used  in  any  foreign  country  before  his  in- 
vention or  discovery  thereof,  if  it  had  not  been  before  pat- 
ented or  described  in  any  printed  publication. 

28.  Joint  inventors  are  entitled  to  a  joint  patent; 
neither  of  them  can  obtain  a  patent  for  an  invention 
jointly  invented  by  them.  Independent  inventors  of  dis- 
tinct and  independent  improvements  in  the  same  ma- 
chine can  not  obtain  a  joint  patent  for  their  separate  in- 
ventions. The  fact  that  one  person  furnishes  the  capital 
and  another  makes  the  invention  does  not  entitle  them  to 
make  an  application  as  joint  inventors ;  but  in  such  case 
they  may  become  joint  patentees,  upon  the  conditions  pre- 
scribed in  Rule  26. 

29.  The  receipt  of  letters  patent  from  a  foreign  govern- 
ment will  not  prevent  the  inventor  from  obtaining  a  pat- 
ent in  the  United  States,  unless  the  application  on  which 
the  foreign   patent   was   granted   was   pled   more   than 


APPENDIX.  453 

twelve  month*  prior  to  tlie  filing  of  tlic  application  in 
tJtis  country,  in  which  case  no  patent  shall  be  (/ranted  in 
this  country. 

THE    APPLICATION. 

30.  Applications  for  letters  patent  of  the  United  States 
must  be  made  to  the  Commissioner  of  Patents,  and  must 
be  signed  by  the  inventor,  if  alive.  ( See  Rules  2G,  33,  40, 
46.)  A  complete  application  comprises  the  first  fee  of 
$15,  a  petition,  specification,  and  oath;  and  drawings, 
model,  or  specimen  when  required.  (See  Rules  49,  56, 
62. )  The  petition,  specification,  and  oath  must  be  in  the 
English  language.  All  papers  which  are  to  become  a 
part  of  the  permanent  records  of  the  office  must  be  legi- 
bly written  or  printed  in  permanent  ink. 

31.  An  application  for  a  patent  will  not  be  placed 
upon  the  files  for  examination  until  all  its  pans,  except 
the  model  or  specimen,  are  received. 

Every  application  signed  or  sworn  to  in  blank,  or  with- 
out actual  inspection  by  the  applicant  of  the  petition  and 
specification,  and  every  application  altered  or  partly 
filled  up  after  being  signed  or  sworn  to,  will  be  stricken 
from  the  files. 

Completed  applications  are  numbered  in  regular  order, 
the  present  series  having  been  commenced  on  the  1st  of 
January,  1900. 

The  applicant  will  be  informed  of  the  serial  number 
of  his  application. 

The  application  must  be  completed  and  prepared  for 
examination  within  one  year  after  the  filing  of  the  peti- 
tion; and  in  default  thereof,  or  upon  failure  of  the  appli- 
cant to  prosecute  the  same  within  one  year  after  any  ac- 
tion thereon  (Rule  77),  of  which  notice  shall  have  been 


454  ADMINISTRATIVE    LAW. 

duly  mailed  to  him  or  his  agent,  the  application  will  be 
regarded  as  abandoned,  unless  it  shall  be  shown  to  the 
satisfaction  of  the  Commissioner  that  such  delay  was 
unavoidable.      (See  Eules  171  and  172.) 

32.  It  is  desirable  that  all  parts  of  the  complete  appli 
cation  should  be  deposited  in  the  office  at  the  same  time, 
and  that  all  the  papers  embraced  in  the  application 
should  be  attached  together ;  otherwise  a  letter  must  ac- 
company each  part,  accurately  and  clearly  connecting  it 
with  the  other  parts  of  the  application.      (See  Rule  10.) 

THE  PETITION. 

33.  The  petition  must  be  addressed  to  the  Commission- 
er of  Patents,  and  must  state  the  name,  residence,  and 
postoffice  address  of  the  petitioner  requesting  the  grant 
of  a  patent,  designate  by  title  the  invention  sought  to  be 
patented,  contain  a  reference  to  the  specifications  for  a 
full  disclosure  of  such  invention,  and  must  be  signed  by 
the  applicant. 

THE  SPECIFICATION. 

34.  The  specification  is  a  written  description  of  the  in- 
vention or  discovery  and  of  the  manner  and  process  of 
making,  constructing,  compounding,  and  using  the  same, 
and  is  required  to  be  in  such  full,  clear,  concise,  and  ex- 
act terms  as  to  enable  any  person  skilled  in  the  art  or 
science  to  which  the  invention  or  discovery  appertains, 
or  with  which  it  is  most  nearly  connected,  to  make,  con- 
struct, compound,  and  use  the  same. 

35.  The  specification  must  set  forth  the  precise  inven- 
tion for  which  a  patent  is  solicited,  and  explain  the  prin- 
ciple thereof,  and  the  best  mode  in  which  the  applicant 
has  contemplated  applying  that  principle,  in  such  man- 
ner as  to  distinguish  it  from  other  inventions. 


APPENDIX.  455 

36.  In  ca.se  of  a  mere  improvement,  the  specification 
must  particularly  point  out  the  parts  to  which  the  im- 
provement relates,  and  must  by  explicit  language  distin- 
guish between  what  is  old  and  what  is  claimed  as  new; 
and  the  description  and  the  drawings,  as  well  as  the 
claims,  should  be  confined  to  the  specific  improvement 
and  such  parts  as  necessarily  co-operate  with  it. 

37.  The  specification  must  conclude  with  a  specific  and 
distinct  claim  or  claims  of  the  part,  improvement,  or 
combination  which  the  applicant  regards  as  his  inven- 
tion or  discovery. 

38.  When  there  are  drawings  the  description  will  refer 
to  the  different  views  by  figures  and  to  the  different  parts 
by  letters  or  numerals  (preferably  the  latter). 

39.  The  following  order  of  arrangement  should  be  ob- 
served in  framing  the  specification  : 

(1)  Preamble  stating  the  name  and  residence  of  the 

applicant  and  the  title  of  the  invention. 

(2)  General  statement  of  the  object  and  nature  of 

the  invention. 

(3)  Brief  description  of  the  several  views  of  the 

drawings    I  if  the  invention  admits  of  such 
illustration  i . 

(4)  Detailed  description. 
i  .">  i    Claim  or  claims. 

(6)  Signature  of  inventor. 

(7)  Signatures  of  two  witnesses. 

40.  The  specifical  ion  must  be  signed  by  the  inventor  or 
by  bis  executor  or  administrator,  ami  the  signature 
must  be  attested  by  two  witnesses.  Full  names  must  be 
given,  and  all  names,  whether  of  applicants  or  witnesses, 
must  be  legibly  written. 

41.  Two  or  more  independent   inventions  can   not   be 


456  ADMINISTRATIVE    LAW. 

claimed  in  one  application;  but  where  several  distinct  in- 
ventions arc  dependent  upon  each  other  and  mutually 
contribute  to  produce  a  single  result  they  may  be  claimed 
in  one  application. 

Claims  for  a  machine  and  its  product  must  be  pre- 
sented IN  SEPARATE  APPLICATIONS. 

Claims  for  a  machine  and  the  process  ix  the  per- 
formance   OF    WHICH    THE    MACHINE    IS    USED    MUST    BE 

presented  ix  separate  applications. 

Claims  for  a  process  and  its  product  may  be  pre- 
sented  ix  the  same  application. 

42.  If  several  inventions,  claimed  in  a  single  applica- 
tion, be  of  such  a  nature  that  a  single  patent  may  not  be 
issued  to  cover  them,  the  inventor  will  be  required  to 
limit  the  description,  drawing,  and  claim  of  the  pending 
application  to  whichever  invention  he  may  elect.  The 
other  inventions  may  be  made  the  subjects  of  separate 
applications,  which  must  conform  to  the  rules  applica- 
ble to  original  applications.  If  the  independence  of  the 
inventions  be  clear,  such  limitation  will  be  made  before 
any  action  upon  the  merits;  otherwise  it  may  be  made 
at  any  time  before  final  action  thereon,  in  the  discretion 
of  the  examiner. 

43.  AVhen  an  applicant  tiles  two  or  more  applications 
relating  to  the  same  subject-matter  of  invention,  all 
showing  but  only  one  claiming  the  same  thing,  the  ap- 
plications not  claiming  it  must  contain  references  to  the 
application  claiming  it. 

44.  A  reservation  for  a  future  application  of  subject- 
matter  disclosed  but  not  claimed  in  a  pending  applica- 
tion, but  which  subject-matter  might  be  claimed  therein, 
will  not  be  permitted  in  the  pending  application. 

45.  The  specification  and  claims  must  be  plainly  writ- 


APPENDIX.  457 

ten  or  printed  on  but  one  side  of  the  paper.  All  inter- 
lineations and  erasures  must  be  clearly  referred  to  in 
marginal  or  foot  notes  on  the  same  sheet  of  paper.  Legal- 
cap  paper  with  the  Hues  numbered  is  deemed  preferable, 
and  a  wide  margin  must  always  be  reserved  upon  the 
left-hand  side  of  the  page. 

THE  OATH. 

4(3.  The  applicant,  if  the  inventor,  must  make  oath  or 
affirmation  that  he  does  verily  believe  himself  to  be  the 
original  and  first  inventor  or  discoverer  of  the  art,  ma- 
chine, manufacture,  composition,  or  improvement  for 
which  he  solicits  a  patent;  that  he  does  not  know  and 
does  not  believe  that  the  same  was  ever  before  known  or 
used,  and  shall  state  of  what  country  he  is  a  citizen  and 
where  he  resides.  In  every  original  application  the  ap- 
plicant must  distinctly  state  under  oath  that  the  inven- 
tion has  not  been  patented  to  himself  or  to  others  iritJi  his 
knoivledge  or  consent  in  this  or  an//  foreign  country  for 
more  than  two  //ears  /trior  to  his  application,  or  on  an  ap- 
plication for  a  /latent  pled  in  any  foreign  country  by 
himself  or  his  legal  representatives  or  assigns  more  than 
ticclue  months  prior  to  his  application.  If  any  applica- 
tion for  /latent  has  been  filed  in  any  foreign  country  by 
the  applicant  in  this  country,  or  by  his  legal  representa- 
tives or  assigns,  /trior  to  his  application  in  this  country, 
lie  shall  state  the  country  or  countries  in  which  such  ap- 
plication has  been  filed,  giving  the  date  of  such  applica- 
tion, and  shall  also  stale  that  no  application  has  been 
filed  in  any  oilier  country  or  countries  than  those  men- 
tioned; that  to  the  best  of  his  knowledge  and  belief  the 
invention  has  not  been  in  public  use  or  on  sale  in  the 
United  States,  nor  described  in  any  printed  publication 


458  ADMINISTRATIVE    LAW. 

or  patent  in  this  or  in  any  foreign  country,  for  more  than 
two  years  prior  to  his  application  in  this  country.  This 
oath  must  be  subscribed  to  by  the  affiant. 

The  Commissioner  may  require  an  additional  oath  in 
cases  where  the  applications  have  not  been  filed  in  the 
Patent  Office  within  a  reasonable  time  after  the  execu- 
tion of  the  original  oath. 

47.  If  the  application  be  made  by  an  executor  or  admin- 
istrator of  a  deceased  person  or  the  guardian,  conserva- 
tor, or  representative  of  an  insane  person,  the  form  of  the 
oath  will  be  correspondingly  changed. 

The  oath  or  affirmation  may  be  made  before  any  person 
within  the  United  States  authorized  by  law  to  administer 
oaths,  or,  when  the  applicant  resides  in  a  foreign  country, 
before  any  minister,  charge  d'affaires,  consul,  or  commer- 
cial agent  holding  commission  under  the  government  of 
the  United  States,  or  before  any  notary  public,  judge,  or 
magistrate  ha  ring  an  official  seal  and  authorized  to  ad- 
minister oaths  in  the  foreign  country  in  which  the  appli- 
cant mag  be,  whose  authorit g  shall  be  proved  bg  a  certifi- 
cate of  a  diplomatic  or  consular  officer  of  the  United 
States,  the  oath  being  attested  in  all  cases,  in  this  and 
other  countries,  by  the  proper  official  seal  of  the  officer 
before  whom  the  oath  or  affirmation  is  made.  When  the 
person  before  whom  the  oath  or  affirmation  is  made  is  not 
provided  with  a  seal,  his  official  character  shall  be  estab- 
lished by  competent  evidence,  as  by  a  certificate  from  a 
clerk  of  a  court  of  record  or  other  proper  officer  having  a 
seal. 

When  the  oath  is  taken  before  an  officer  in  a  country 
foreign  to  the  United  States,  all  the  application  papers 
must  be  attached  together  and  a  ribbon  passed  one  or 
more  times  through  all  the  sheets  of  the  application,  and 


APPENDIX.  459 

the  ends  of  said  ribbon  brought  together  under  the  seal 
before  the  latter  is  affixed  and  impressed,  or  each  sheet 
must  be  impressed  with  the  official  seal  of  the  officer  be- 
fore whom  the  oath  was  taken,  or,  if  he  is  not  provided 
with  a  seal,  then  each  sheet  must  be  initialed  by  him. 

48.  When  an  applicant  presents  a  claim  for  matter 
originally  shown  or  described  but  not  substantially  em- 
braced in  the  statement  of  invention  or  claim  originally 
presented,  he  will  file  a  supplemental  oath  to  the  effect 
that  the  subject-matter  of  the  proposed  amendment  was 
part  of  his  invention,  was  invented  before  he  filed  his 
original  application,  was  not  known  or  used  before  his 
invention,  was  not  patented  or  described  in  a  printed 
publication  in  any  country  more  than  two  years  before 
his  application,  was  not  patented  to  himself  or  to  others 
with  his  knowledge  or  consent  in  this  or  any  foreign 
country  on  an  application  filed  more  than  twelve  months 
prior  to  his  application,  was  not  in  public  use  or  on  sale 
in  this  country  for  more  than  two  years  before  the  date 
of  his  application,  and  has  not  been  abandoned.  Such 
supplemental  oath  must  be  attached  to  and  properly  iden- 
tify the  proposed  amendment. 

THE  DRAWINGS. 

49.  The  applicant  for  a  patent  is  required  by  law  to 
furnish  a  drawing  of  his  invention  whenever  the  nature 
of  the  case  admits  of  it. 

50.  The  drawing  may  be  signed  by  the  inventor,  or  the 
name  of  the  inventor  may  be  signed  on  the  drawing  by 
his  attorney  in  fact,  and  must  be  attested  by  two  wit- 
nesses. The  drawing  must  show  every  feature  of  the  in- 
vention covered  by  the  claims,  and  the  figures  should  be 
consecul  ively  numbered  if  possible.     When  the  invention 


460  ADMINISTRATIVE    LAW. 

consists  of  an  improvement  on  an  old  machine  the  draw- 
ing must  exhibit,  in  one  or  more  views,  the  invention  it- 
self, disconnected  from  the  old  structure,  and  also  in  an- 
other view  so  much  only  of  the  old  structure  as  will  suf- 
fice to  show  the  connection  of  the  invention  therewith. 

51.  Three  several  editions  of  patent  drawings  are 
printed  and  published — one  for  office  use,  certified  copies, 
etc.,  of  the  size  and  character  of  those  attached  to  patents, 
the  work  being  about  6  by  9^  inches ;  one  reduced  to  half 
that  scale,  or  one-fourth  the  surface,  of  which  four  are 
printed  on  a  page  to  illustrate  the  volumes,  distributed 
to  the  courts ;  and  one  reduction — to  about  the  same  scale 
— of  a  selected  portion  of  each  drawing  for  the  Official 
Gazette. 

This  work  is  done  by  the  photolithographic  process, 
and  therefore  the  character  of  each  original  drawing 
must  be  brought  as  nearly  as  possible  to  a  uniform  stand- 
ard of  excellence,  suited  to  the  requirements  of  the 
process,  and  calculated  to  give  the  best  results,  in  the  in- 
terests of  inventors,  of  the  office,  and  of  the  public.  The 
following  rules  will  therefore  be  rigidly  enforced,  and 
any  departure  from  them  will  be  certain  to  cause  delay  in 
the  examination  of  an  application  for  letters  patent: 

(1)  Drawings  must  be  made  upon  pure  white  paper 
of  a  thickness  corresponding  to  three-sheet 
Bristol-board.  The  surface  of  the  paper  must 
be  calendered  and  smooth.  India  ink  alone 
must  be  used,  to  secure  perfectly  black  and 
solid  lines. 

(2)  The  size  of  a  sheet  on  which  a  drawing  is  made 
must  be  exactly  10  by  15  inches.  One  inch 
from  its  edges  a  single  marginal  line  is  to  be 
drawn,  leaving  the  "sight"  precisely  8  by  13 


APPENDIX.  461 

inches.  Within  this  margin  all  work  and  sig- 
natures must  be  included.  One  of  the  shorter 
sides  of  the  sheet  is  regarded  as  its  top,  and, 
measuring  downwardly  from  the  marginal  line, 
a  space  of  not  less  than  1]  inches  is  to  be  left 
blank  for  the  heading  of  title,  name,  number, 
and  date. 

(3)  All  drawings  must  be  made  with  the  pen  only. 
Every  line  and  letter  (signatures  included) 
must  be  absolutely  black.  This  direction  ap- 
plies to  all  lines,  however  fine,  to  shading,  and 
to  lines  representing  cut  surfaces  in  sectional 
views.  All  lines  must  be  clean,  sharp,  and  sol- 
id, and  they  must  not  be  too  fine  or  crowded. 
Surface  shading,  when  used,  should  be  open. 
Sectional  shading  should  be  made  by  oblique 
parallel  lines,  which  may  be  about  one-twen- 
tieth of  an  inch  apart.  Solid  black  should  not 
be  used  for  sectional  or  surface  shading. 

(4)  Drawings  should  be  made  with  the  fewest  lines 
possible  consistent  with  clearness.  By  the  ob- 
servance of  this  rule  the  effectiveness  of  the 
work  after  reduction  will  be  much  increased. 
Shading  (except  on  sectional  views)  should  be 
used  only  on  convex  and  concave  surfaces, 
where  it  should  be  used  sparingly,  and  may 
even  there  be  dispensed  with  if  the  drawing  is 
otherwise  well  executed.  The  plane  upon 
which  a  sectional  view  is  taken  should  be  indi- 
cated on  the  genera]  view  by  a  broken  or  (haled 
line.  Heavy  lines  on  the  shade  sides  of  objects 
should  be  used,  excepl  where  they  tend  to  thick- 
en the  work  and   obscure  letters  of  reference. 


462  ADMINISTRATIVE    LAW. 

The  light  is  always  supposed  to  come  from  the 
upper  left-hand  corner  at  an  angle  of  forty-five 
degrees.  Imitations  of  wood  or  surface  grain- 
ing should  not  be  attempted. 

(5)  The  scale  to  which  a  drawing  is  made  ought  to 
be  large  enough  to  show  the  mechanism  with- 
out crowding,  and  two  or  more  sheets  should  be 
used  if  one  does  not  give  sufficient  room  to  ac- 
complish this  end ;  but  the  number  of  sheets 
must  never  be  more  than  is  absolutely  neces- 
sary. 

(6)  The  different  views  should  be  consecutively 
numbered.  Letters  and  figures  of  reference 
must  be  carefully  formed.  They  should,  if  pos- 
sible, measure  at  least  one-eighth  of  an  inch  in 
height,  so  that  they  may  bear  reduction  to  one 
twenty-fourth  of  an  inch;  and  they  may  be 
much  larger  when  there  is  sufficient  room. 
They  must  be  so  placed  in  the  close  and  com- 
plex parts  of  drawings  as  not  to  interfere  with 
a  thorough  comprehension  of  the  same,  and 
therefore  should  rarely  cross  or  mingle  with 
the  lines.  When  necessarily  grouped  around  a 
certain  part,  they  should  be  placed  at  a  little 
distance,  where  there  is  available  space,  and 
connected  by  short  broken  lines  with  the  parts 
to  which  they  refer.  They  must  never  appear 
upon  shaded  surfaces,  and  when  it  is  difficult 
to  avoid  this,  a  blank  space  must  be  left  in  the 
shading  where  the  letter  occurs,  so  that  it  shall 
appear  perfectly  distinct  and  separate  from  the 
work.     If  the  same  part  of  an  invention  appear 


APPENDIX.  463 

in  more  than  one  view  of  the  drawing  it  must 
always  be  represented  by  the  same  character, 
and  the  same  character  must  never 'be  used  to 
designate  different  parts. 

(7)  The  signature  of  the  inventor  should  be  placed 
at  the  lower  right-hand  corner  of  each  sheet, 
and  the  signatures  of  the  witnesses  at  the  lower 
left-hand  corner,  all  within  the  marginal  line, 
but  in  no  instance  should  they  trespass  upon 
the  drawings.  The  title  should  be  written 
with  pencil  on  the  back  of  the  sheet.  The  per- 
manent names  and  title  will  be  supplied  subse- 
quently by  the  office  in  uniform  style 

When  views  are  longer  that  the  width  of  the 
sheet,  the  sheet  should  be  turned  on  its  side  and 
the  heading  will  be  placed  at  the  right  and  the 
signatures  at  the  left,  occupying  the  same  space 
and  position  as  in  the  upright  views,  and  being 
horizontal  when  the  sheet  is  held  in  an  upright 
position  ;  and  all  views  on  the  same  sheet  must 
stand  in  the  same  direction.  One  figure  must 
not  be  placed  upon  another  or  within  the  out- 
line of  another. 

(8)  As  a  rule,  one  view  only  of  each  invention  can 
be  shown  in  the  Gazette  illustrations.  The  se- 
lection oft  luii  portion  of  a  drawing  best  calcu- 
lated to  explain  the  nature  of  the  specific  im- 
provement would  be  facilitated  and  the  final 
lesult  improved  by  the  judicious  execution  of  a 
figure  with  express  reference  to  the  Gazette,  but 
which  might  at  the  same  time  serve  as  one  of  the 
figures  referred  t<»  in  the  specification.    For  this 


464  ADMINISTRATIVE    LAW. 

purpose  the  figure  may  be  a  plan,  elevation,  sec- 
tion, or  perspective  view,  according  to  the  judg- 
ment of  the  draftsman.  It  must  not  cover  a 
space  exceeding  16  square  inches.  All  its  parts 
should  be  especially  open  and  distinct,  with 
very  little  or  no  shading^  and  it  must  illustrate 
the  invention  claimed  only,  to  the  exclusion  of 
all  other  details.  When  well  executed,  it  will 
be  used  without  curtailment  or  change,  but 
any  excessive  fineness,  or  crowding,  or  un- 
necessary elaborateness  of  detail  will  necessi- 
tate its  exclusion  from  the  Gazette. 
(9)  Drawings  should  be  rolled  for  transmission  to 
the  office,  not  folded. 

An  agent's  or  attorney's  stamp,  or  adver- 
tisement, or  written  address  will  not  be  permit- 
ted upon  the  face  of  a  drawing,  within  or  with- 
out the  marginal  line. 

52.  In  certain  cases  these  rules  may  be  modified  as  to 
drawings  for  designs.  (See  rules  for  designs,  83  and 
84.1 

53.  All  reissue  applications  must  be  accompanied  by 
new  drawings,  of  the  character  required  in  original  ap- 
plications, and  the  inventor's  name  must  appear  upon  the 
same  in  all  cases;  and  such  drawings  shall  be  made  upon 
the  same  scale  as  the  original  drawing,  or  upon  a  larger 
scale,  unless  a  reduction  of  scale  shall  be  authorized  by 
the  Commissioner. 

54.  The  foregoing  rules  relating  to  drawings  will  be 
rigidly  enforced.  Every  drawing  not  artistically  exe- 
cuted in  conformity  thereto  may  he  admitted  for  purposes 


APPENDIX.  455 

of  examination  if  it  sufficiently  illustrates  the  inven- 
tion, but  in  such  cases  a  new  drawing  must  be  furnished 
before  the  application  can  be  allowed.  The  office  will 
make  the  necessary  corrections  at  the  applicant's  option 
and  cost. 

55.  Applicants  arc  advised  to  employ  competent  ar- 
tists to  make  their  drawings. 

The  office  will  furnish  the  drawings  at  cost,  as  prompt- 
ly as  its  draftsmen  can  make  them,  for  applicants  who 
can  not  otherwise  conveniently  procure  them. 

THE    MODEL. 

56.  Preliminary  examinations  will  not  be  made  for  the 
purpose  of  determining  whether  models  are  required  in 
particular  cases.  Applications  complete  in  all  other  re- 
spects will  be  sent  to  the  examining  divisions,  whether 
models  are  or  are  not  furnished.  A  model  will  only  be 
required  or  admitted  as  a  part  of  the  application  when 
on  examination  of  the  case  in  its  regular  order  the  pri- 
mary examiner  shall  find  it  to  be  necessary  or  useful.  In 
such  case,  if  a  model  has  not  been  furnished,  the  exam- 
iner shall  notify  the  applicant  of  such  requirement,  which 
will  constitute  an  official  action  in  the  case.  When  a 
model  is  received  in  compliance  with  the  official  require- 
ment, the  date  of  its  filing  shall  be  entered  on  the  file 
wrapper.  Models  not  required  nor  admitted  will  be  re- 
turned to  the  applicants.  When  a  model  is  required,  the 
examination  will  be  suspended  until  it  shall  have  been 
tiled.  From  a  decision  of  the  primary  examine]-  overrul- 
ing a  motion  to  dispense  with  a  model  an  appeal  may  be 
taken  to  the  Commissioner  in  person,  under  the  pro- 
visions of  Rule  1  15. 

Adm.  Law — 30. 


466  ADMINISTRATIVE    LAW. 

57.  The  model  must  clearly  exhibit  every  feature  of 
the  machine  which  forms  the  subject  of  a  claim  of  inven- 
tion, but  should  not  include  other  matter  than  that  cov- 
ered by  the  actual  invention  or  improvement,  unless  it  be 
necessary  to  the  exhibition  of  the  invention  in  a  working 
model. 

58.  The  model  must  be  neatly  and  substantially  made 
of  durable  material,  metal  being  deemed  preferable;  but 
when  the  material  forms  an  essential  feature  of  the  in- 
vention, the  model  should  be  constructed  of  that  material. 
The  model  must  not  be  more  than  one  foot  in  length, 
width,  or  height,  except  in  cases  in  which  the  Commis- 
sioner shall  admit  working  models  of  complicated  ma- 
chines of  larger  dimensions.  If  made  of  wood,  it  must 
be  painted  or  varnished.  Glue  must  not  be  used ;  but  the 
parts  should  be  so  connected  as  to  resist  the  action  of 
heat  and  moisture.  When  practicable,  to  prevent  loss, 
the  model  or  specimen  should  have  the  name  of  the  in- 
ventor permanently  fixed  thereon.  In  cases  where  mod- 
els are  not  made  strong  and  substantial  as  here  directed, 
the  application  will  not  be  examined  until  a  proper 
model  is  furnished. 

59.  A  working  model  is  often  desirable,  in  order  to  en- 
able the  office  fully  and  readily  to  understand  the  precise 
operation  of  the  machine. 

60.  In  all  applications  which  have  remained  rejected 
for  more  than  one  year  the  model,  unless  it  is  deemed 
necessary  that  it  should  be  preserved  in  the  office,  may 
be  returned  to  the  applicant  upon  demand  and  at  his  ex- 
pense; and  the  model  in  any  pending  case  of  less  than 
one  years  standing  may  be  returned  to  the  applicant 
upon  the  filing  of  a  formal  abandonment  of  the  applica- 


APPENDIX.  467 

tion,  signed  by  the  applicant  in  person  and  am-  assignee. 
(See  Rule  171.) 

Models  belonging  to  patented  eases  shall  not  be  taken 
from  the  office  except  in  the  custody  of  some  sworn  em- 
ploye of  the  office  specially  authorized  by  the  Commis- 
sioner. 

61.  Models  filed  as  exhibits  in  contested  cases  may  be 
returned  to  the  parties  at  their  expense.  If  not  claimed 
within  a  reasonable  time,  they  may  be  disposed  of  at  the 
discretion  of  the  Commissioner. 

SPECIMENS. 

62.  When  the  invention  or  discovery  is  a  composition 
of  matter,  the  aoolicant,  if  required  by  the  Commission- 
er, shall  furnish  specimens  of  the  composition,  and  of  its 
ingredients,  sufficient  in  quantity  for  the  purpose  of  ex- 
Deriment.  In  all  cases  where  the  article  is  not  perish- 
able, a  specimen  of  the  composition  claimed,  put  up  in 
proper  form  to  be  preserved  by  the  office,  must  be  fur- 
nished.    (Rules  56,  60,  and  61  apply  to  specimens  also.) 

THE   EXAMINATION. 

63.  Applications  filed  in  the  Patent  Office  are  classified 
according  to  the  various  arts,  and  are  taken  up  for  exam- 
ination in  regular  order  of  filing,  those  in  the  same  class 
of  invention  being  examined  and  disposed  of,  as  far  as 
practicable,  in  the  order  in  which  the  respective  applica- 
t  ions  are  completed. 

The  following  new  applications  have  preference  over 
all  other  new  cases  at  every  period  of  their  examination 
in  i lie  order  enumerated  : 

(1)    Applications  wherein  the  inventions  are  deem- 
ed of  peculiar  importance  to  some  branch  of 


468  ADMINISTRATIVE    LAW. 

the  public  service,  and  when  for  that  reason 
the  head  of  some  Department  of  the  Govern- 
ment requests  immediate  action  and  the  Com- 
missioner so  orders;  but  in  such  case  it  shall  be 
the  duty  of  such  head  of  a  Department  to  be 
represented  before  the  Commissioner  in  order 
to  prevent  the  improper  issue  of  a  patent. 

(2)  Applications  for  reissues. 

(3)  Applications  which  appear  to  interfere  with 
other  applications  previously  considered  and 
found  to  be  allowable,  or  which  it  is  demanded 
shall  be  placed  in  interference  with  an  unex- 
pired patent  or  patents. 

The  following  applications,  previously  acted  upon,  will 
have  preference  over  other  business : 

(1)  Cases  remanded  by  an  appellate  tribunal  for 
further  action,  and  statements  of  grounds  of 
decisions  provided  for  in  Rules  135  and  145. 

(2)  Applications  which  have  been  put  into  condi- 
tion for  further  action  by  the  examiner  shall 
be  entitled  to  precedence  over  new  applica- 
tions in  the  same  class  of  invention. 

(3)  Applications  which  have  been  renewed  or  re- 
vived but  the  subject-matter  not  changed. 

(4)  When  the  inventor  dies  and  his  executor  or  ad- 
ministrator files  a  new  application  for  the  same 
invention,  the  new  application  may  be  given 
the  same  status  in  the  order  of  examination  as 

the  original  by  order  of  the  Commissioner. 
64.  Where  the  specification  and  claims  are  such  that 
the  invention  may  be  readily  understood,  the  examination 
of  a  complete  application  and  the  action  thereon  will  be 


APPENDIX.  469 

directed  throughout  to  the  merits ;  but  in  each  letter  the 
examiner  shall  state  or  refer  to  all  his  objections. 

Only  in  applications  found  by  the  examiner  to  present 
patentable  subject-matter  and  in  applications  on  which 
appeal  is  taken  to  the  examiners-in-chief  will  require- 
ments in  matters  of  form  be  insisted  on.  (See  Rules  95 
and  134.) 

REJECTIONS   AND   REFERENCES. 

65.  Whenever,  on  examination,  any  claim  of  an  appli- 
cation is  rejected  for  any  reason  whatever,  the  applicant 
will  be  notified  thereof.  The  reasons  for  such  rejection 
will  be  fully  and  precisely  stated,  and  such  information 
and  references  will  be  given  as  may  be  useful  in  aiding 
the  applicant  to  judge  of  the  propriety  of  prosecuting  his 
application  or  of  altering  his  specification ;  and  if,  after 
receiving  such  notice,  he  shall  persist  in  his  claim,  with 
or  without  altering  his  specification,  the  application  will 
be  re-examined.  If  upon  re-examination  the  claim  shall 
be  again  rejected,  the  reasons  therefor  will  be  fully  and 
precisely  stated. 

G6.  Upon  the  rejection  of  an  application  for  want  of 
novelty,  the  examiner  must  cite  the  best  references  at  his 
command.  When  the  reference  shows  or  describes  in- 
ventions other  than  that  claimed  by  the  applicant,  the 
particular  part  relied  on  will  be  designated  as  nearly  as 
practicable.  The  pertinence  of  the  reference,  if  not  ob- 
vious, must  be  clearly  explained  and  the  anticipated 
claim  specified. 

If  domestic  patents  be  cited,  their  dates  and  numbers, 
the  names  of  the  patentees,  and  the  classes  of  invention 
must  be  stated.  If  foreign  patents  be  cited,  their  dates 
and  numbers,  the  names  of  the  patentees,  titles  of  the  in- 


470  ADMINISTRATIVE    LAW. 

ventions,  and  the  classes  of  inventions  must  be  stated, 
and  such  other  data  must  be  furnished  as  will  enable  the 
applicant  to  identify  the  patents  cited.  If  printed  pub- 
lications be  cited,  the  title,  date,  page  or  plate,  author, 
and  place  of  publication,  or  place  where  a  copy  can  be 
found,  will  be  given.  When  reference  is  made  to  facts 
within  the  personal  knowledge  of  an  employe  of  the  of- 
fice, the  data  will  be  as  specific  as  possible,  and  the  refer- 
ence must  be  supported,  when  called  for,  by  the  affidavit 
of  such  employe  (Rule  76)  ;  such  affidavit  shall  be  sub- 
ject to  contradiction,  explanation,  or  corroboration  by 
the  affidavits  of  the  applicant  and  other  persons.  If  the 
patent,  printed  matter,  plates,  or  drawings  so  referred 
to  are  in  the  possession  of  the  office,  copies  will  be  fur- 
nished at  the  rate  specified  in  Eule  204,  upon  the  order 
of  the  applicant. 

67.  Whenever,  in  the  treatment  of  an  ex  parte  applica- 
tion, an  adverse  decision  is  made  upon  any  preliminary  or 
intermediate  question,  without  the  rejection  of  any 
claim,  notice  thereof,  together  with  the  reasons  therefor, 
will  be  given  to  the  applicant,  in  order  that  he  may  judge 
of  the  propriety  of  the  action.  If,  after  receiving  such 
notice,  he  traverse  the  propriety  of  the  action,  the  matter 
will  be  reconsidered. 

AMENDMENTS  AND  ACTIONS  BY  APPLICANTS. 

68.  The  applicant  has  a  right  to  amend  before  or  after 
the  first  rejection  or  action ;  and  he  may  amend  as  often 
as  the  examiner  presents  new  references  or  reasons  for 
rejection.  In  so  amending,  the  applicant  must  clearly 
point  out  all  the  patentable  novelty  which  he  thinks  the 
case  presents  in  view  of  the  state  of  the  art  disclosed  by 
the  references  cited  or  the  objections  made.     He  must 


APPENDIX.  471 

also  show  how  the  amendments  avoid  such  references  or 
objections. 

After  such  action  upon  an  application  as  will  entitle 
the  applicant  to  an  appeal  to  the  examiners-in-chief 
(Rule  134),  or  after  such  appeal  has  been  taken,  amend- 
ments canceling  claims  or  presenting  those  rejected  in 
better  form  for  consideration  on  appeal  may  be  admitted ; 
but  the  admission  of  such  an  amendment  or  its  refusal, 
and  any  proceedings  relative  thereto,  shall  not  operate 
to  relieve  the  application  from  its  condition  as  subject  to 
appeal,  or  to  save  it  from  abandonment  under  Rule  171. 
If  amendments  touching  the  merits  of  the  application  are 
presented  after  the  case1  is  in  condition  for  appeal,  or 
after  appeal  has  been  taken,  they  may  be  admitted  upon 
a  showing  duly  verified  of  good  and  sufficient  reasons  why 
they  were  not  earlier  presented.  From  the  refusal  of 
the  primary  examiner  to  admit  an  amendment  a  petition 
will  lie  to  the  Commissioner  under  Rule  115.  No  amend- 
ment can  be  made  in  appealed  cases  between  the  filing  of 
the  examiner's  statement  of  the  grounds  of  his  decision 
(Rule  135)  and  the  decision  of  the  appellate  tribunal. 
After  decision  on  appeal  amendments  can  only  be  made 
as  provided  in  Rule  112,  or  to  carry  into  effect  a  recom- 
mendation under  Rule  139. 

69.  In  order  to  be  entitled  to  the  reconsideration  pro- 
vided for  in  Rules  Go  and  67,  the  applicant  must  make 
request  therefor  in  writing,  and  he  must  distinctly  and 
specifically  point  out  the  supposed  errors  in  the  examin- 
er's action.  The  mere  allegation  that  the  examiner  has 
erred  will  not  be  received  as  a  proper  reason  for  such  re- 
consideration. 

70.  In  original  applications  which  are  capable  of  illus- 
tration by  drawing  or  model  all  amendments  of  the  mod- 


472  ADMINISTRATIVE    LAW. 

el,  drawings,  or  specifications,  and  all  additions  thereto, 
in ust  conform  to  at  least  one  of  them  as  it  was  at  the 
time  of  the  filing  of  the  application.  Matter  not  found  in 
either,  involving  a  departure  from  the  original  invention, 
can  be  shown  or  claimed  only  in  a  separate  application. 

71.  The  specification  and  drawing  must  be  amended 
and  revised  when  required,  to  correct  inaccuracies  of  de- 
scription or  unnecessary  prolixity  and  to  secure  corre- 
spondence between  the  claim,  the  specification,  and  the 
drawing.  But  no  change  in  the  drawing  may  be  made 
except  by  written  permission  of  the  office  and  after  a 
photographic  copy  of  the  drawing  as  originally  presented 
has  been  filed. 

72.  After  the  completion  of  the  application  the  office 
will  not  return  the  specification  for  any  purpose  what- 
ever. If  applicants  have  not  preserved  copies  of  the  pa- 
pers which  they  wish  to  amend,  the  office  will  furnish 
them  on  the  usual  terms. 

The  model  or  drawing,  but  not  both  at  the  same  time, 
may  be  withdrawn  for  correction;  but  a  drawing  can  not 
be  withdrawn  unless  a  model  has  been  filed  and  accepted 
by  the  examiner  as  a  part  of  the  application. 

73.  In  every  amendment  the  exact  word  or  words  to  be 
stricken  out  or  inserted  in  the  application  must  be  speci- 
fied and  the  precise  point  indicated  where  the  erasure  or 
insertion  is  to  be  made.  All  such  amendments  must  be 
on  sheets  of  paper  separate  from  the  papers  previously 
filed,  and  written  on  but  one  side  of  the  paper.  Era- 
sures, additions,  insertions,  or  mutilations  of  the  papers 
and  records  must  not  be  made  by  the  applicant. 

Amendments  and  papers  requiring  the  signature  of  the 
applicant  must  also,  in  case  of  assignment  of  an  undi- 


APPENDIX.  473 

vided  part  of  the  invention,  be  signed  by  the  assignee. 
(Rules  6, 107.) 

74.  When  an  amendatory  clause  is  amended,  it  must 
be  wholly  rewritten,  so  that  no  interlineation  or  erasure 
shall  appear  in  the  clause,  as  finally  amended,  when  the 
application  is  passed  to  issue.  If  the  number  or  nature 
of  the  amendments  shall  render  it  otherwise  difficult  to 
consider  the  case  or  to  arrange  the  papers  for  printing  or 
copying,  the  examiner  or  Commissioner  may  require  the 
entire  specification  to  be  rewritten. 

To.  When  an  original  or  reissue  application  is  rejected 
on  reference  to  an  expired  or  unexpired  domestic  patent 
which  substantially  shows  or  describes  but  does  not  claim 
the  rejected  invention,  or  on  reference  to  a  foreign  patent 
or  to  a  printed  publication,  and  the  applicant  shall  make 
oath  to  facts  showing  a  completion  of  the  invention  in 
this  country  before  the  filing  of  the  application  on  which 
the  domestic  patent  issued,  or  before  the  date  of  the  for- 
eign patent,  or  before  the  date  of  the  printed  publication, 
and  shall  also  make  oath  that  he  does  not  know  and  does 
not  believe  that  the  invention  has  been  in  public  use  or 
on  sale  in  this  country,  or  patented  or  described  in  a 
printed  publication  in  this  or  any  foreign  country  for 
more  than  two  years  prior  to  his  application,  and  that  he 
has  never  abandoned  the  invention,  then  the  patent  or 
publication  cited  will  not  bar  the  granl  of  a  paienttothe 
applicant,  unless  the  date  of  such  patent  or  printed  pub- 
lication is  more  than  two  years  prior  to  the  date  on  which 
application  was  filed  in  this  country. 

70.  When  an  application  is  rejected  on  reference  to  an 
expired  or  unexpired  domestic  patent  which  shows  or  de- 
scribes but  does  not  claim  the  invention,  or  on  reference 


474  ADMINISTRATIVE    LAW. 

to  a  foreign  patent,  or  to  a  printed  publication,  or  to  facts 
within  the  personal  knowledge  of  an  employe  of  the  office, 
set  forth  in  an  affidavit  (when  requested)  of  such  em- 
ploye (Rule  66),  or  when  rejected  on  the  ground  of  pub- 
lic use  or  sale,  or  upon  a  mode  or  capability  of  operation 
attributed  to  a  reference,  or  because  the  alleged  inven- 
tion is  held  to  be  inoperative  or  frivolous  or  injurious  to 
public  health  or  morals,  affidavits  or  depositions  support- 
ing or  traversing  these  references  or  objections  may  be 
received,  but  affidavits  will  not  be  received  in  other  cases 
without  special  permission  of  the  Commissioner.  (See 
Rule  141.) 

77.  If  an  applicant  neglect  to  prosecute  his  application 
for  oik  year  after  the  date  when  the  last  official  notice  of 
any  action  by  the  office  was  mailed  to  him,  the  applica- 
tion will  be  held  to  be  abandoned,  as  set  forth  in  Rule  171. 

Whenever  action  upon  an  application  is  suspended 
upon  request  of  an  applicant,  and  whenever  an  applicant 
has  been  called  upon  to  put  his  application  in  condition 
for  interference,  the  period  of  one  year  running  against 
such  application  shall  be  considered  as  beginning  at  the 
date  of  the  last  official  action  preceding  such  actions. 

Acknowledgment  of  the  filing  of  an  application  is  an 
official  action.  Suspensions  will  only  be  granted  for 
good  and  sufficient  cause,  and  for  a  reasonable  time 
specified. 

Only  one  .suspension  will  be  granted  by  the  primary  ex- 
it miner;  any  further  suspension  must  be  approved  by  the 
( Commissioner. 

78.  Amendments  will  not  be  permitted  after  the  notice 
of  allowance  of  an  application,  and  the  examiner  will  ex- 
ercise jurisdiction  over  such  an  application  only  by  spe- 
cial authority  from  the  Commissioner. 


APPENDIX.  475 

Amendments  may  be  made  after  the  allowance  of  an 
application,  and  after  payment  of  the  final  fee,  if  the 
specification  has  not  been  printed,  on  the  recommenda- 
tion of  the  primary  examiner,  approved  by  the  Commis- 
sioner, without  withdrawing  the  case  from  issue.  (See 
Rule  135.) 

DESIGNS. 

79.  A  design  patent  may  be  obtained  by  any  person 
who  has  invented  any  new,  original,  and  ornamental  de- 
sign for  an  article  of  manufacture,  not  known  or  used  by 
others  in  this  country  before  his  invention  thereof,  and 
not  patented  or  described  in  any  printed  publication  in 
this  or  an}7  foreign  country  before  his  invention  thereof, 
or  more  than  two  years  prior  to  his  application,  and  not 
caused  to  be  patented  by  him  in  a  foreign  country  on  an 
application  filed  more  than  four  months  before  his  appli- 
cation in  this  country,  and  not  in  public  use  or  on  sale  in 
this  country  for  more  than  two  years  prior  to  his  ap- 
plication, unless  the  same  is  proved  to  have  been  aban- 
doned, upon  payment  of  the  fees  required  by  law  and 
other  due  proceedings  had,  the  same  as  in  cases  of  in- 
ventions or  discoveries. 

80.  Patents  for  designs  are  granted  for  the  term  of 
three  and  one-half  years,  or  for  seven  years,  or  for  four- 
teen years,  as  the  applicant  may,  in  his  application,  elect. 

81.  The  proceeding's  in  applications  for  patents  for  de- 
signs are  substantially  the  same  as  in  applications  for 
other  patents.  The  specification  must  distinctly  de- 
scribe the  article  in  its  aspect  of  shape  or  configuration 
and  ornamentation.  This  having  been  done,  as  every 
design  must  be  new,  original,  and  ornamental,  the  claim 
may  properly  be,  in  the  broadest  form,  for  the  ornamental 


476 


ADMINISTRATIVE    LAW. 


design,  substantially  as  shown  and  described.  The  fol- 
low in-  order  of  arrangement  should  be  observed  in  fram- 
ing the  specifications: 

( 1 )  Preamble,  stating  name  and  residence  of  the  ap- 
plicant,  title  of  the  design,  and  the  name  of  the 
article  for  which  the  design  has  been  invented. 

(2)  Detailed  description  of  the  design,  as  it  appears 
in  the  drawing. 

(3)  Claim. 

(4)  Signature  of  inventor. 

i  5  i    Signatures  of  two  witnesses. 

82.  When  the  design  can  be  sufficiently  represented  by 
drawings  a  model  will  not  be  required. 

83.  The  design  must  be  represented  by  a  drawing  made 
to  conform  to  the  rules  laid  down  for  drawings  of  me- 
chanical inventions. 

84.  Reference  to  the  materials  used  or  the  mode  of 
i  heir  utilization  or  the  mechanical  construction  of  the  de- 
sign can  not  properly  enter  into  the  description  of  the 
design. 

(  For  forms  to  be  used  in  applications  for  design  pat- 
ents, sec  Appendix.) 

REISSUES. 

85.  A  reissue  is  granted  to  the  original  patentee,  his 
legal  representatives,  or  the  assignees  of  the  entire  inter- 
est, when  the  original  patent  is  inoperative  or  invalid  by 
reason  of  a  defective  or  insufficient  specification,  or  by 
reason  of  the  patentee  claiming  as  his  invention  or  discov- 
ery more  than  he  had  a  right  to  claim  as  new,  provided 
the  error  has  arisen  through  inadvertence,  accident,  or 
mistake,  and  without  any  fraudulent  or  deceptive  inten- 
tion. 


APPENDIX.  477 

Reissue  applications  must  be  made  and  the  specifica- 
tions sworn  to  by  the  inventors,  if  they  be  living. 

86.  The  petition  for  a  reissue  must  be  accompanied  by 
a  certified  copy  of  the  abstract  of  title,  giving  the  names 
of  all  assignees  owning  any  undivided  interest  in  the  pat- 
ent. In  case  the  application  be  made  by  the  inventor  it 
must  be  accompanied  by  the  written  assent  of  such  as- 
signees. 

87.  Applicants  for  reissue,  in  addition  to  the  require- 
ments of  Rule  46,  must  also  file  with  their  petitions  a 
statement  on  oath  as  follows : 

(1)  That  applicant  verily  believes  the  original  pat- 
ent to  be  inoperative  or  invalid,  and  the  reason 
why. 

(2)  When  it  is  claimed  that  such  patent  is  so  inop- 
erative or  invalid  "by  reason  of  a  defective  or 
insufficient  specification,"  particularly  specify- 
ing such  defects  or  insufficiencies. 

(3)  When  it  is  claimed  that  such  patent  is  inopera- 
tive or  invalid  "by  reason  of  the  patentee  claim- 
ing as  his  own  invention  or  discovery  more  than 
he  had  a  right  to  claim  as  new,"  distinctly  spec- 
ifying the  part  or  parts  so  alleged  to  have  been 
improperly  claimed  as  new. 

(4)  Particularly  specifying  the  errors  which  it  is 
claimed  constitute  the  inadvertence,  accident, 
or  mistake  relied  upon,  and  how  they  rose  or 
occurred. 

(5)  That  said  errors  arose  "without  any  fraudulent 
or  deceptive  intention"  on  the  part  of  the  ap- 
plicant. 

88.  New  matter  sliall  not  be  allowed  to  be  introduced 
into  the  reissue  specifical  ion,  nor  in  the  case  of  a  machine 


478  ADMINISTRATIVE    LAW. 

shall  the  model  or  drawings  be  amended  except  each  by 
the  other. 

89.  The  Commissioner  may,  in  his  discretion,  cause 
several  patents  to  be  issued  for  distinct  and  separate 
parts  of  the  thing  patented,  upon  demand  of  the  appli- 
cant, and  upon  payment  of  the  required  fee  for  each  di- 
vision of  such  reissued  letters  patent.  Each  division  of  a 
reissue  constitutes  the  subject  of  a  separate  specification 
descriptive  of  the  part  or  parts  of  the  invention  claimed 
in  such  division ;  and  the  drawing  may  represent  only 
such  part  or  parts,  subject  to  the  provisions  of  Rule  50. 
Unless  otherwise  ordered  by  the  Commissioner,  all  the 
divisions  of  a  reissue  will  issue  simultaneously;  if  there 
be  any  controversy  as  to  one  division,  the  others  will  be 
withheld  from  issue  until  the  controversy  is  ended,  un- 
less the  Commissioner  shall  otherwise  order. 

90.  An  original  claim,  if  reproduced  in  the  reissue  spec- 
ification, is  subject  to  re-examination,  and  the  entire  ap- 
plication will  be  revised  and  restricted  in  the  same  man- 
ner as  original  applications. 

91.  The  application  for  u  reissue  must  he  accompanied 
by  the  original  patent  and  an  offer  to  surrender  the  same, 
or,  if  the  original  be  lost,  by  an  affidavit  to  that  effect,  and 
a  certified  copy  of  the  patent.  If  a  reissue  be  refused, 
the  original  patent  trill  be  returned  to  applicant  upon  his 
request. 

92.  Matter  shown  and  described  in  an  unexpired  pat- 
ent, and  which  might  have  been  lawfully  claimed  therein, 
but  which  was  not  claimed  by  reason  of  a  defect  or  insuf- 
ficiency in  the  specification,  arising  from  inadvertence, 
accident,  or  mistake,  and  without  fraud  or  deceptive  in- 
tent, can  not  be  subsequently  claimed  by  the  patentee 
in  a  separate  patent,  but  only  in  a  reissue  of  the  original 
patent. 


APPENDIX.  479 

INTERFERENCES. 

93.  An  interference  is  a  proceeding  instituted  for  the 
purpose  of  determining  the  question  of  priority  of  inven- 
tion between  two  or  more  parties  claiming  substantially 
the  same  patentable  invention.  The  fact  that  one  of  the 
parties  has  already  obtained  a  patent  will  not  prevent  an 
interference,  for,  although  the  Commissioner  has  no 
power  to  cancel  a  patent,  he  may  grant  another  patent 
for  the  same  invention  to  a  person  who  proves  to  be  the 
prior  inventor. 

94.  Interferences  will  be  declared  in  the  following- 
cases,  when  all  the  parties  claim  substantially  the  same 
patentable  invention : 

(1)  Between  two  or  more  original  applications  con- 
taining conflicting  claims. 

(2)  Between  an  original  application  and  an  unex- 
pired patent  containing  conflicting  claims, 
when  the  applicant,  having  been  rejected  on  the 
patent,  shall  tile  an  affidavit  that  he  made  the 
invention. before  the  patentee's  application  was 
filed. 

(3)  Between  an  original  application  and  an  appli- 
cation for  the  reissue  of  a  patent  granted  dur- 
ing the  pendency  of  such  original  application. 

it  i  Between  an  original  application  and  a  reissue 
application,  when  the  original  applicant  shall 
file  an  affidavit  showing  that  he  made  t  he  inven- 
tiiin  before  the  patentee's  original  application 
was  filed. 

(5)  Between  two  or  more  applications  for  the  reis- 
sue of  patents  granted  on  applications  pending 
at  the  same  t  ime. 


480  ADMINISTRATIVE    LAW. 

(6)  Between  two  or  more  applications  for  the  reis- 
sue of  patents  granted  on  applications  not 
pending  at  the  same  time,  when  the  applicant 
for  reissue  of  the  later  patent  shall  file  an  affi- 
davit showing  that  he  made  the  invention  be- 
fore the  application  was  filed  on  which  the  ear- 
lier patent  was  granted. 

(7)  Between  a  reissue  application  and  an  unex- 
pired patent,  if  the  original  applications  were 
pending  at  the  same  time,  and  the  reissue  ap- 
plicant shall  file  an  affidavit  showing  that  he 
made  the  invention  before  the  original  applica- 
tion of  the  other  patentee  was  filed. 

(8)  Between  an  application  for  reissue  of  a  later  un- 
expired patent  and  an  earlier  unexpired  pat- 
ent granted  before  the  original  application  of 
the  later  patent  was  filed,  if  the  reissue  appli- 
cant shall  file  an  affidavit  showing  that  he 
made  the  invention  before  the  original  applica- 
tion of  the  earlier  patent  was  filed. 

(9)  An  interference  trill  not  be  declared  between 
an  original  application  filed  subscejuently  to  De- 
cember 31, 189! ,  and  a  patent  issued  more  than 
two  years  prior  to  the  <lnlc  of  filing  such. appli- 
cation or  an  application  for  a  reissue  of  such  a 
patent. 

95.  Before  the  declaration  of  interference  all  prelim- 
inary questions  must  be  settled  by  the  primary  examiner, 
and  the  issue  must  be  clearly  defined;  the  invention 
which  is  to  form  the  subject  of  the  controversy  must  be 
decided  to  be  patentable,  and  the  claims  of  the  respec- 
tive parties  must  be  put  in  such  condition  that  they  will 
not  require  alteration  after  the  interference  shall  have 


APPENDIX.  481 

been  finally  decided,  unless  the  testimony  adduced  upon 
the  trial  shall  necessitate  or  justify  such  change. 

9G.  Whenever  two  or  more  applications  disclose  the 
same  invention,  and  one  of  said  applications  is  ready  for 
allowance  and  contains  a  claim  to  said  in  rent  ion,  the 
primary  examiner  will  notify  the  other  applicant  of  such 
fact, furnish  him  with  a  cop//  of  the  pah  ntable  claim, and 
require  him  to  make  such  claim  and  pal  his  case  in  condi- 
tion for  allowance  within  a  specified  time,  so  that  an  in- 
terference can  be  declared.  I  pon  the  failure  of  any  ap- 
plicant to  make  the  claim  suggested  within  the  time  sp<  <■- 
ified,  such  failure  or  refusal  shall  he  taken  without  fur- 
ther action  as  a  disclaimer  of  the  in  rent  ion  covered  by 
the  claim,  and  the  issue  of  the  patent  to  tin:  applicant 
whose  application  is  in  condition  for  allowance  will  not 
be  delayed  unless  the  lime  for  making  the  claim  and  put- 
ting tJte  application  in  condition  for  allowance  be  ex- 
tended upon  a  proper  showing.  If  a  party  make  the 
claim  without  putting  his  application  in  condition  for 
allowance,  the  declaration  of  lite  interference  trill  not  b< 
delayed,  but  after  judgment  of  priori!//  the  application 
of  such  party  will  he  held  for  revision  and  restriction, 
subject  to  interference  with  other  applications. 

!)7.  When  an  interference  is  found  to  exist  and  the  ap- 
plications are  prepared  therefor,  the  primary  examiner 
will  forward  to  the  examiner  of  interferences  the  tiles 
and  drawings;  notices  of  interference  for  all  the  parties 
(as  specified  in  Rule  103)  disclosing  the  name  and  resi- 
dence of  each  party  and  that  of  his  attorney,  and  of  any 
assignee,  and,  if  any  party  lie  a  patentee,  the  date  and 
number  of  the  patent;  the  ordinals  of  the  conflicting 
claims  and  the  title  of  the  invention  claimed;  and  the 
issue,  which  shall  lie  clearly  and  concisely  defined  in  so 
Adm.  Law — 31. 


482  ADMINISTRATIVE    LAW. 

many  counts  or  branches  as  may  be  necessary  in  order 
to  include  all  interfering  claims.  Where  the  issue  is 
stated  in  more  than  one  count  the  respective  claims  in- 
volved in  each  count  should  be  specified.  The  primary 
examiner  shall  also  forward  to  the  examiner  of  interfer- 
ences for  his  use  a  statement  disclosing  the  applications 
involved  in  interference,  fully  identified,  the  name  and 
residence  of  any  assignee,  and  the  names  and  residences 
of  all  attorneys,  both  principal  aud  associate,  and  ar- 
ranged in  the  inverse  chronological  order  of  their  filing 
as  completed  applications,  and  also  disclosing  the  issue 
or  issues  and  the  ordinals  of  the  conflicting  claims. 

Whenever  it  shall  be  found  that  two  or  more  parties 
whose  interests  are  in  conflict  are  represented  by  the 
same  attorney,  the  examiner  will  notify  each  of  said 
principal  parties,  and  also  the  attorney,  of  this  fact. 

98.  Upon  receipt  of  the  notices  of  interference,  the  ex- 
aminer of  interferences  will  make  an  examination  there- 
of, in  order  to  ascertain  whether  the  issue  between  the 
parties  has  been  clearly  defined,  and  whether  they  are 
otherwise  correct.  If  he  be  of  the  opinion  that  the  no- 
tices are  ambiguous  or  are  defective  in  any  material 
point,  he  will  transmit  his  objections  to  the  primary  ex- 
aminer, who  will  promptly  notify  the  examiner  of  inter- 
ferences of  his  decision  to  amend  or  not  to  amend  them. 

99.  In  case  of  a  material  disagreement  between  the  ex- 
aminer of  interferences  and  the  primary  examiner,  the 
points  of  difference  shall  be  referred  to  the  Commissioner 
for  decision. 

100.  The  primary  examiner  will  retain  jurisdiction  of 
the  case  until  the  declaration  of  interference  is  made. 

101.  Upon  the  institution  and  declaration  of  the  in- 


APPENDIX.  483 

terferenee,  as,  provided  in  Rule  102,  the  examiner  of  in- 
terferences will  take  jurisdiction  of  the  same,  which  will 
then  become  a  contested  case;  but  the  primary  examiner 
will  determine  the  motions  mentioned  in  Rule  122,  as 
therein  provided. 

102.  When  the  notices  of  interference  are  in  proper 
form,  the  examiner  of  interferences  will  add  thereto  a 
designation  of  the  time  within  which  the  preliminary 
statements  required  by  Rule  110  must  be  filed,  and  will, 
pro  forma,  institute  and  declare  the  interference  by  for- 
warding the  notices  to  the  several  parties  to  the  pro- 
ceeding. 

103.  The  notices  of  interference  will  be  forwarded  by 
the  examiner  of  interferences  to  all  the  parties,  in  care  of 
their  attorneys,  if  they  have  attorneys,  and,  if  the  appli- 
cation or  patent  in  interference  has  been  assigned,  to  the 
assignees.  When  one  of  the  parties  has  received  a  patent, 
a  notice  will  be  sent  to  the  patentee  and  to  his  attorney  of 
record. 

When  the  notices  sent  in  the  interest  of  a  patent  are 
returned  to  the  office  undelivered,  or  when  one  of  the 
parties  resides  abroad  and  his  agent  in  the  United  States 
is  unknown,  additional  notice  may  be  given  by  publica- 
tion  in  the  Official  Gazette  for  such  period  of  time  as  the 
Commissioner  may  direct. 

KH.  if  either  party  require  a  postponemenl  of  the  time 
for  tiling  his  preliminary  statement,  he  will  present  his 
motion,  duly  served  on  (he  other  parties,  with  his  rea- 
sons therefor,  supported  by  affidavit,  and  such  motion 
should  Ite  made,  if  possible,  prior  to  (he  day  previously 
fixed  upon.  Bui  the  examiner  of  interferences  may,  in 
his  discretion,  dispense  with  service  of  notice  of  such 
mot  ion. 


484  ADMINISTRATIVE    LAW. 

105.  When  an  application  is  involved  in  an  interfer- 
ence in  which  a  part  only  of  the  invention  is  included  in 
the  issue,  the  applicant  may  file  certified  copies  of  the 
part  or  parts  of  the  specification,  claims,  and  drawings 
which  cover  the  interfering  matter,  and  such  copies  may 
be  used  in  the  proceeding  in  place  of  the  original  appli- 
cation. 

106.  When  a  part  only  of  an  application  is  involved  in 
an  interference,  the  applicant  may  withdraw  from  his 
application  the  subject-matter  adjudged  not  to  interfere, 
and  file  a  new  application  therefor,  or  he  may  file  a  divi- 
sional application  for  the  subject-matter  involved,  if  the 
invention  can  be  legitimately  divided:  Provided,  That 
no  claim  shall  be  made  in  either  application  broad 
enough  to  include  matter  claimed  in  the  other. 

107.  An  applicant  involved  in  an  interference  may, 
with  the  written  consent  of  the  assignee,  when  there  has 
been  an  assignment,  before  the  date  fixed  for  the  filing 
of  his  preliminary  statement  (see  Rule  110),  in  order  to 
avoid  the  continuance  of  the  interference,  disclaim  under 
his  own  signature,  attested  by  two  witnesses,  the  inven- 
tion of  the  particular  matter  in  issue,  and  upon  such  dis- 
claimer and  the  cancellation  of  any  claims  involving 
such  interfering  matter  judgment  shall  be  rendered 
against  him,  and  a  copy  of  the  disclaimer  shall  be  em- 
bodied in  and  form  part  of  his  specification.  (See  Rule 
182. ) 

108.  When  applications  are  declared  to  be  in  interfer- 
ence, the  interfering  parties  will  be  permitted  to  see  or 
obtain  copies  of  each  other's  file-wrappers,  and  so  much 
of  their  contents  as  relate  to  the  interference,  after  the 
preliminary  statements  referred  to  in  Rule  110  have  been 
received  and  approved ;  but  information  of  an  application 


APPENDIX.  485 

will  not  be  furnished  by  the  office  to  an  opposing  party, 
except  as  provided  in  Rules  07  and  103,  until  after  the 
approval  of  such  statement. 

100.  When  an  application  is  involved  in  an  interfer- 
ence in  part  and  shows  and  describes,  without  claiming  a 
patentable  invention  claimed  by  another  party  thereto, 
the  applicant  may,  at  any  time  within  twenty  days  after 
the  preliminary  statements  i  referred  to  in  Rule  110)  of 
the  parties  have  heen  received  and  approved,  on  motion 
duly  made,  as  provided  in  Rule  153,  tile  an  amendment  of 
his  application  duly  claiming  such  invention,  and  on  the 
admission  of  such  amendment  the  invention  shall  he  in- 
cluded in  the  interference.  Such  motion  must  he  ac- 
companied by  the  proposed  amendment,  and  when  in 
proper  form  will  lie  transmitted  by  the  examiner  of 
interferences  to  the  primary  examiner  for  his  deter- 
mination. In  case  the  amendment  shall  be  admitted, 
the  primary  examiner  will  redeelare  tin1  interference, 
prepare  new  notices,  and  forward  the  papers  and  files 
to  the  examiner  of  interferences,  who  will  proceed  in 
accordance  with  Rule  103.  The  decision  of  the  pri- 
mary examiner  will  be  binding  upon  the  examiner  of  in- 
terferences, unless  reversed  or  modified  on  appeal,  as 
provided  in  Rule  124. 

110.  Each  party  to  the  interference  will  he  required  to 
file  a  concise  preliminary  statement,  under  oath,  on  or 
before  a  date  to  he  fixed  by  the  office,  showing  the  follow- 
ing facts : 

(1)  The  date  of  original  conception  of  the  invention 
set  forth  in  the  declaration  of  interference. 

(2)  The  date  upon  which  a  drawing  of  the  invention 

was  made. 


486  ADMINISTRATIVE    LAW. 

(3)  The  date  upon  which  a  model  of  the  invention 
was  made. 

(4)  The  date  upon  which  the  invention  was  first 
disclosed  to  others. 

(5)  The  date  of  the  reduction  to  practice  of  the  in- 
vention. 

(6)  A  statement  showing  the  extent  of  use  of  the 
invention. 

If  a  drawing  or  model  has  not  been  made,  or  if  the  in- 
vention has  not  been  reduced  to  practice  or  disclosed  to 
others,  or  used  to  any  extent,  the  statement  must  spe- 
cifically disclose  these  facts. 

When  the  invention  was  made  abroad  the  statement 
should  set  forth : 

(1)  That  applicant  made  the  invention  set  forth  in 
the  declaration  of  interference. 

(2)  Whether  or  not  the  invention  was  ever  pat- 
ented; if  so,  when  and  where,  giving  the  date 
and  number  of  each  patent,  the  date  of  publica- 
tion, and  the  date  of  sealing  thereof. 

(3)  Whether  or  not  the  invention  was  ever  de- 
scribed in  a  printed  publication;  if  so,  when 
and  where,  giving  the  title,  place,  and  date  of 
such  publication. 

(4)  Whether  or  not  the  invention  was  ever  intro- 
duced into  this  country;  if  so,  giving  the  cir- 
cumstances, with  the  dates  connected  there- 
with, which  are  relied  upon  to  establish  the 
fact. 

(5)  //  the  applicant  is  a  citizen  of  a  foreign  coun- 
try adhering  to  the  International  Convention 
for  the  Protection  of  Industrial  Property,  or  a 


APPENDIX. 


487 


country  having  similar  treaty  relations   with 
the  United  States,  he  sliall  state  the  date  and 
number  of  any  application  for  the  .mine  inven- 
tion  pled   in  his  own   country   within   twelve 
months  of  the  filing  date  in  the  United  States. 
The  preliminary  statements  should  be  carefully  pre- 
pared, as  the  parties  will  be  strictly  held  in  their  proofs 
to  the  dates  set  up  therein. 

If  a  party  prove  any  date  earlier  than  alleged  in  his 
preliminary  statement,  such  proof  will  be  held  to  estab- 
lish the  date  alleged  and  none  other. 

The  statement  must  be  sealed  up  before  filing  (to  be 
opened  only  by  the  examiner  of  interferences;  se/e  Rule 
111 ),  and  the  name  of  the  party  filing  it,  the  titl/j  of  the 
case,  and  the  subject  of  the  invention  indicated  on  the 
envelope.  The  envelope  should  contain  nothing  but  this 
statement. 

111.  The  preliminary  statements  shall  not  be  opened 
to  the  inspection  of  the  opposing  parties  until  each  one 
shall  have  been  filed,  or  the  time  for  such  filing,  with 
any  extension  thereof,  shall  have  expired,  and  not  then 
unless  they  have  been  examined  by  the  proper  officer 
and  found  to  be  satisfactory. 

Any  party  in  default  in  filing  his  preliminary  state- 
ment shall  not  have  access  to  the  preliminary  statement 
or  statements  of  his  opponent  or  opponents  until  he  has 
either  filed  his  statement  or  waived  his  right  thereto,  and 
agreed  to  stand  upon  his  record  date. 

112.  If,  on  examination,  a  statement  is  found  to  be  de- 
fective in  any  particular,  the  party  shall  be  notified  of 
the  defect  and  wherein  it  consists,  and  a  time  assigned 
within  which  he  must  cure  the  same  by  an  amended  state- 


488  ADMINISTRATIVE    LAW. 

ment;  luit  in  no  case  will  the  original  or  amended  state- 
ment be  returned  to  the  party  after  it  has  been  filed. 
Unopened  statements  will  be  removed  from  interference 
pics  and  preserved  by  the  office,  and  in  no  case  will  such 
statements  be  open  to  the  inspection  of  the  opposing 
party  without  authority  from  the  Commissioner.  If  a 
party  shall  refuse  to  file  an  amended  statement,  he  will 
be  restricted  to  his  record  date  in  the  further  proceedings 
in  the  interference. 

113.  In  case  of  material  error  arising  through  inad- 
vertence or  mistake,  the  statement  may  be  corrected  on 
motion  i  see  Rule  153),  upon  showing  to  the  satisfaction 
of  the  Commissioner  that  the  correction  is  essential  to 
the  ends  of  justice.  The  motion  to  correct  the  statement 
must  be  made,  if  possible,  before  the  taking  of  any  testi- 
mony, and  as  soon  as  practicable  after  the  discovery  of 
the  error. 

114.  If  the  junior  party  to  an  interference,  or  if  any 
party  thereto  other  than  the  senior  party,  fails  to  file  a 
statement,  or  if  his  statement  fails  to  overcome  the 
prima  facie  case  made  by  the  respective  dates  of  applica- 
tion, such  party  will  be  notified  by  the  examiner  of  inter- 
ferences that  judgment  upon  the  record  will  be  rendered 
against  him  at  the  expiration  of  twenty  days.  Within 
this  period  of  twenty  days  any  of  the  motions  permitted 
by  the  rules  may  be  brought.  Motions  brought  after 
judgment  on  the  record  has  been  rendered  will  not  be 
entertained  unless  sufficient  reasons  appear  for  the  de- 
lay. 

115.  If  a  party  to  an  interference  fails  to  file  a  state- 
ment, testimony  will  not  be  received  subsequently  from 
him  to  prove  that  he  made  the  invention  at  a  date  prior 
to  his  application. 


APPENDIX.  489 

116.  In  original  proceedings  in  cases  of  interference 

the  several  parties  will  be  presumed  to  have  made  the  in- 
vention in  the  chronological  order  in  which  they  filed 
their  completed  applications  for  patents  clearly  illus- 
trating and  describing  the  invention;  and  the  burden  of 
proof  will  rest  niton  the  party  who  shall  seek  to  establish 
a  different  state  of  facts. 

117.  The  preliminary  statement  can  in  no  case  be  used 
as  evidence  in  behalf  of  the  party  making  it. 

118.  Times  will  be  assigned  in  which  the  junior  appli- 
cant shall  complete  his  testimony  in  chief,  and  in  which 
the  other  party  shall  complete  the  testimony  on  his  side, 
and  a  further  time  in  which  the  junior  applicant  may  take 
rebutting  testimony;  but  he  shall  take  no  other  testi- 
mony. If  there  be  more  than  two  parties  to  the  interfer- 
ence, the  times  for  taking  testimony  will  be  so  arranged 
that  each  shall  have  an  opportunity  to  prove  his  case 
against  prior  applicants  and  to  rebut  their  evidence,  and 
also  to  meet  the  evidence  of  junior  applicants. 

119.  Whenever  the  time  for  taking  the  testimony  of  a 
party  to  an  interference  shall  have  expired,  and  no  testi- 
mony shall  have  been  taken  by  such  party,  any  senior 
party  may,  by  motion  based  on  a  showing  properly  veri- 
fied and  served  on  such  party  in  default,  have  an  order 
entering  judgment  against  such  defaulting  party,  unless 
the  latter  shall,  at  a  day  set  and  not  less  than  ten  (Says 
after  the  hearing  of  the  mot  ion,  show  good  and  sufficient 
cause  why  the  judgment  shall  not  be  entered. 

120.  If  either  party  desire  to  have  the  hearing  con- 
tinued, he  will  make  application  for  such  postponement 
by  motion  (see  Rule  153),  and  will  show  sufficient  reason 
therefor  bv  affidavit. 


490  ADMINISTRATIVE    LAW. 

121.  If  either  party  desire  an  extension  of  the  time 
assigned  to  him  for  taking  testimony,  he  will  make  ap- 
plication therefor,  as  provided  in  Kule  154  (4). 

122.  Motions  to  dissolve  an  interference  upon  the 
ground  that  no  interference  in  fact  exists,  or  that  there 
has  been  such  irregularity  in  declaring  the  same  as  will 
preclude  a  proper  determination  of  the  question  of  pri- 
ority, or  which  deny  the  patentability  of  an  applicant's 
claim,  or  his  right  to  make  the  claim,  should,  if  possible, 
be  made  not  later  than  the  twentieth  day  after  the  state- 
ments of  the  parties  have  been  received  and  approved. 
Such  motions,  and  all  motions  of  a  similar  character, 
should  be  accompanied  by  a  motion  to  transmit  the  same 
to  the  primary  examiner,  and  such  motion  to  transmit 
should  be  noticed  for  hearing  upon  a  day  certain  be- 
fore the  examiner  of  interferences.  When  in  proper 
form  the  motion  presented  will  be  transmitted  by  the 
examiner  of  interferences,  with  the  files  and  papers,  to 
the  proper  primary  examiner  for  his  determination,  who 

_will  thereupon  fix  a  day  certain  when  the  said  motion 
will  be  heard  before  him  upon  the  merits,  and  give  notice 
thereof  to  all  the  parties.  If  a  stay  of  proceedings  be  de- 
sired, a  motion  therefor  should  accompany  the  motion  for 
transmission. 

When  the  motion  has  been  decided  by  the  primary  ex- 
aminer, if  no  appeal  has  been  taken  therefrom,  at  the 
expiration  of  the  time  limited  for  appeal  the  examiner 
will  return  the  files  and  papers,  with  his  decision,  to  the 
examiner  of  interferences.  Such  decision  will  be  binding 
on  the  examiner  of  interferences  unless  reversed  or  modi- 
fied on  appeal.     ( Rule  124. ) 

123.  All  lawful  motions,  except  those  mentioned  in 
Rule  122,  will  be  made  before  and  determined  by  the  tri- 


APPENDIX.  491 

bunal  having  jurisdiction  at  the  time.  The  filing  of  mo- 
tions will  not  operate  as  a  stay  of  proceedings  in  any  case. 
To  effect  this,  motion  should  be  made  before  the  tribunal 
having  jurisdiction  of  the  interference,  who  will,  suffi- 
cient grounds  appearing  therefor,  order  a  suspension  of 
the  interference  pending  the  determination  of  such  mo- 
tion. 

121.  Appeal  may  be  taken  directly  to  the  Commission- 
er from  decisions  on  all  motions  except  the  following : 
(1)  On  motions  to  dissolve  which  deny  the  patentability 
of  applicant's  claim;  (2)  on  motions  to  dissolve  which 
deny  the  right  of  an  applicant  to  make  the  claim;  (3) 
on  motions  involving  the  merits  of  the  invention.  Deci- 
sions on  these  motions,  when  appealable,  go  to  the  exam- 
iners-in-chief, in  the  first  instance,  and  upon  such  ap- 
peals the  questions  shall  be  heard  inter  partes. 

From  a  decision  of  the  primary  examiner  affirming  the 
patentability  of  the  claim  or  the  applicant's  right  to 
make  the  same  no  appeal  can  be  taken. 

125.  After  the  interference  is  finally  declared,  it  will 
not,  except  as  herein  otherwise  provided,  be  determined 
without  judgment  of  priority  founded  either  upon  the 
testimony,  or  upon  a  written  concession  of  priority  by 
one  of  the  parties,  signed  by  the  inventor  himself  (and  by 
the  assignee,  if  any),  or  upon  a  written  declaration  of 
abandonment  of  the  invention. 

126.  The  examiner  of  interferences  or  the  examiners- 
in-chief  may,  either  before  or  in  their  decision  on  the 
question  of  priority,  direct  the  attention  of  the  Commis- 
sioner to  any  matter  not  relating  to  priority  which  may 
have  come  to  their  notice,  and  which,  in  their  opinion, 
establishes  the  fad  thai  no  interference  exists,  or  that 
there  has  been  irregularity  in  declaring  the  same  (Rule 


492  ADMINISTRATIVE    LAW. 

122),  or  which  amounts  to  a  statutory  bar  to  the  grant 
of  a  patent  to  either  of  the  parties  for  the  claim  or  claims 
in  interference.  The  Commissioner  may,  before  judg- 
ment on  the  question  of  priority,  suspend  the  interference 
and  remand  the  case  to  the  primary  examiner  for  his 
consideration  of  the  matters  to  which  attention  has  been 
directed.  From  the  decision  of  the  examiner  appeal  may 
be  taken  as  in  other  eases.  If  the  case  shall  not  be  so 
remanded,  the  primary  examiner  will,  after  judgment, 
consider  any  matter  affecting  the  rights  of  either  party 
to  a  patent  which  may  have  been  called  to  his  attention, 
unless  the  same  shall  have  been  previously  disposed  of 
by  the  Commissioner. 

.  127.  A  second  interference  will  not  be  declared  upon 
a  new  application  for  the  same  invention  filed  by  either 
party. 

128.  If,  during  the  pendency  of  an  interference,  a  ref- 
erence be  found,  the  interference  may  be  suspended  at 
the  request  of  the  primary  examiner  until  the  final  de- 
termination of  the  pertinency  and  effect  of  the  reference 
and  the  interference  shall  then  be  dissolved  or  continued 
as  the  result  of  such  determination.  The  consideration 
of  such  reference  shall  be  inter  partes. 

129.  If,  during  the  pendency  of  an  interference,  an- 
other case  appear,  claiming  substantially  the  subject- 
matter  in  issue,  the  primary  examiner  shall  request  the 
suspension  of  the  interference  for  the  purpose  of  adding 
said  case.  Such  suspension  will  be  granted  as  a  matter 
-of  course  by  the  examiner  of  interferences  if  no  testimony 
has  been  taken.  If,  however,  any  testimony  has  been 
taken,  a  notice  for  the  proposed  new  party,  disclosing  the 
issue  in  interference  and  the  names  and  addresses  of  the 
Interferants  and  of  their  attorneys,  and  notices  for  the 


APPENDIX.  493. 

interferants  disclosing'  the  name  and  address  of  the  said 
party  and  his  attorney,  shall  be  prepared  by  the  primary 
examiner  and  forwarded  to  the  examiner  of  interferences^ 
who  shall  mail  said  notices  and  set  a  time  of  hearing  on 
the  question  of  the  admission  of  the  new  party.  If  the 
examiner  of  interferences  be  of  the  opinion  that  the  in- 
terference should  be  suspended  and  the  new  party  added, 
he  shall  prescribe  the  terms  for  such  suspension.  The 
decision  of  the  examiner  of  interferences  as  to  the  addi- 
tion of  a  party  shall  be  final. 

130.  Amendments  to  the  specification  will  not  be  re- 
ceived during  the  pendency  of  an  interference,  except  as 
provided  in  Rules  106,  107,  109. 

131.  When,  on  motion  duly  made1  and  upon  satisfac- 
tory proof,  it  shall  be  shown  that,  by  reason  of  the  ina- 
bility or  refusal  of  the  inventor  to  prosecute  or  defend  an 
interference,  or  from  other  cause,  the  ends  of  justice  re- 
quire that  an  assignee  of  an  undivided  interest  in  the 
invention  should  be  permitted  to  prosecute  or  defend  the 
same,  the  Commissioner  may  so  order. 

132.  Whenever  an  award  of  priority  has  been  rendered 
in  an  interference  proceeding  by  any  tribunal  and  the 
limit  of  appeal  from  such  decision  has  expired,  and  when- 
ever an  interference  has  been  terminated  by  reason  of  the 
written  concession,  signed  by  the  applicant  in  person,  of 
priority  of  invention  in  favor  of  his  opponent  or  op- 
ponents, the  primary  examiner  shall  advise  the  defeated 
or  unsuccessful  party  or  parties  to  the  interference  that 
their  claim  or  claims  which  were  so  involved  in  the  issue 
stand  finally  rejected. 

APPEALS. 

133.  Every  applicant  for-  a  patent,  any  of  the  claims  of 


494  ADMINISTRATIVE    LAW. 

whose  application  have  been  twice  rejected  for  the  same 
reasons,  upon  grounds  involving  the  merits  of  the  inven- 
tion, such  as  lack  of  invention,  novelty,  or  utility,  or  on 
the  ground  of  abandonment,  public  use  or  sale,  inoper- 
ativeness of  invention,  aggregation  of  elements,  incom- 
plete combination  of  elements,  or,  when  amended,  for 
want  of  identity  with  the  invention  originally  disclosed, 
or  because  the  amendment  involves  a  departure  from  the 
invention  originally  presented;  and  every  applicant  for 
the  reissue  of  a  patent  whose  claims  have  been  twice  re- 
jected for  any  of  the  reasons  above  enumerated,  or  on 
the  ground  that  the  original  patent  is  not  inoperative  or 
invalid,  or  if  so  inoperative  or  invalid  that  the  errors 
which  rendered  it  so  did  not  arise  from  inadvertence,  ac- 
cident, or  mistake,  may,  upon  payment  of  a  fee  of  flO, 
appeal  from  the  decision  of  the  primary  examiner  to  the 
examiners-in-chief.  The  appeal  must  set  forth  in  writing 
the  points  of  the  decision  upon  which  it  is  taken,  and 
must  be  signed  by  the  applicant  or  his  duly  authorized 
attorney  or  agent. 

134.  There  must  have  been  two  rejections  of  the  claims 
as  originally  filed,  or,  if  amended  in  matter  of  substance, 
of  the  amended  claims,  and  all  the  claims  must  have  been 
passed  upon,"  and  all  preliminary  and  intermediate  ques- 
tions relating  to  matters  not  affecting  the  merits  of  the 
invention  settled,  before  the  ease  can  be  appealed  to  the 
examiners-in-chief. 

135.  Upon  the  filing  of  the  appeal  the  same  shall  be 
submitted  to  the  primary  examiner,  who,  if  he  find  it 
to  be  regular  in  form,  shall,  within  five  days  from  the 
filing  thereof,  furnish  the  exaniiners-in-chief  with  a  writ- 
ten statement  of  the  grounds  of  his  decision  on  all  the 
points  involved  in  the  appeal,  with  copies  of  the  rejected 


APPENDIX.  495 

claims  and  with  the  references  applicable  thereto.  The 
examiner  shall  at  the  time  of  making  such  statement  fur- 
nish a  copy  of  the  same  to  the  appellant.  If  the  primary 
examiner  shall  decide  that  the  appeal  is  not  regular  in 
form,  a  petition  from  such  decision  may  be  taken  directly 
to  the  Commissioner,  as  provided  in  Rule  145. 

136.  The  appellant  shall,  before  the  day  of  hearing,  file 
a  brief  of  the  authorities  and  arguments  on  which  he 
will  rely  to  maintain  his  appeal. 

137.  If  the  appellant  desire  to  be  heard  orally  before 
the  examiners-in-chief,  he  will  so  indicate  when  he  files 
his  appeal ;  a  day  of  hearing  will  then  be  fixed,  and  due 
notice  of  the  same  given  him. 

138.  In  contested  cases  the  appellant  shall  have  the 
right  to  make  the  opening  and  closing  arguments,  unless 
it  shall  be  otherwise  ordered  by  the  tribunal  having  juris- 
diction of  the  case. 

139.  (a)  The  examiners-in-chief  in  their  decision  will 
affirm  or  reverse  the  decision  of  the  primary  examiner 
only  on  the  points  on  which  appeal  shall  have  been  taken. 
i  See  Rule  133.)  Should  they  discover  an3^  apparent 
grounds  not  involved  in  the  appeal  for  granting  or  re- 
fusing letters  patent  in  the  form  claimed,  or  any  other 
form,  they  will  annex  to  their  decision  a  statement  to  that 
effect,  with  such  recommendation  as  they  shall  deem 
proper. 

(6)  From  an  adverse  judgment  of  the  primary  exam- 
iner on  points  embraced  in  the  recommendation  annexed 
to  the  decision,  appeal  may  be  taken  on  questions  involv- 
ing the  merits  to  the  board  of  examiners-in-chief  and  on 
other  questions  to  the  Commissioner  as  in  other  cases. 

(c)  The  Commissioner  may,  when  an  appeal  from  the 
decision  of  the  examiners-in-chief  is  taken  to  him,  re- 


4vb  ADMINISTRATIVE    LAW. 

mand  the  case  to  the  primary  examiner,  either  before  or 
after  final  judgment,  for  consideration  of  any  amendment 
or  action  which  may  be  based  on  the  recommendation  an- 
nexed to  the  decision  of  the  examiners-in-chief. 

(d)  If  the  Commissioner,  in  reviewing  the  decision  of 
the  examiners-in-chief,  discovers  any  apparent  grounds 
for  granting  or  refusing  letters  patent  not  involved  in 
the  appeal,  he  will,  before  or  after  final  judgment,  and 
whenever  in  his  opinion  substantial  justice  shall  require 
it,  give  reasonable  notice  thereof  to  the  parties;  and  if 
any  amendment  or  action  based  thereon  be  proposed,  he 
will  remand  the  case  to  the  primary  examiner  for  con- 
sideration. 

(e)  From  the  decisions  of  the  primary  examiner,  in 
cases  remanded  as  herein  provided,  appeal  will  lie  to  the 
board  of  examiners-in-chief,  or  directly  to  the  Commis- 
sioner, as  in  other  cases. 

140.  From  the  adverse  decision  of  the  board  of  exam- 
iners-in-cliief  appeal  may  be  taken  to  the  Commissioner 
in  person,  upon  payment  of  the  fee  of  $20  required  by 
law. 

141.  If  affidavits  be  received  after  the  case  has  been 
appealed,  the  application  will  lie  remanded  to  the  pri- 
mary examiner  for  reconsideration. 

112.  Cases  which  have  been  heard  and  decided  by  the 
Commissioner  on  appeal  will  not  be  reopened  except  by 
his  order;  cases  which  have  been  decided  by  the  examin- 
ers-in-chief will  not  be  reheard  by  them,  when  no  longer 
pending  before  them,  without  the  written  authority  of 
the  Commissioner;  and  cases  which  have  been  decided  by 
either  the  Commissioner  or  the  examiners-in-chief  will 
not  be  reopened  by  the  primary  examiner  without  like 
authority,  and  then  only  for  the  consideration  of  matters 


APPENDIX.  ,  497 

not  already   adjudicated    upon,   sufficient    cause  being 
shown.     (See  Rule  68.) 

143.  Contested  cases  will  be  regarded  as  pending  be- 
fore a  tribunal  until  the  limit  of  appeal,  which  must  be 
fixed,  has  expired,  or  until  some  action  has  been  had 
which  waives  the  appeal  or  carries  into  effect  the  deci- 
sion from  which  appeal  might  have  been  taken. 

Ex  parte  cases  decided  by  an  appellate  tribunal  will, 
after  decision,  be  remanded  at  once  to  the  primary  exam- 
iner, subject  to  the  applicant's  right  of  appeal,  or  such 
action  as  will  carry  into  effect  the  decision,  or  for  such 
further  action  as  the  applicant  is  entitled  to  demand. 

144.  Cases  which  have  been  deliberately  decided  by 
one  Commissioner  will  not  be  reconsidered  by  his  succes- 
sor except  in  accordance  with  the  principles  which  gov- 
ern the  granting  of  new  trials. 

145.  Upon  receiving  a  petition  stating  concisely  and 
clearly  any  proper  question  which  has  been  twice  acted 
upon  by  the  examiner,  and  which  does  not  involve  the 
merits  of  the  invention  claimed,  or  the  rejection  of  a 
claim,  and  also  stating  the  facts  involved  and  the  point 
or  points  to  be  reviewed,  an  order  will  be  made  fixing 
a  time  for  hearing  such  petition  by  the  Commissioner, 
and  directing  the  examiner  to  furnish  a  written  state- 
ment of  the  grounds  of  his  decision  upon  the  matters 
averred  in  such  petition  within  five  days  after  being  noti- 
fied of  the  order  fixing  the  day  of  hearing.  The  examiner 
shall  at  the  time  of  making  such  statement  furnish  a 
copy  thereof  to  the  petitioner.  No  fee  is  required  for  such 
a  petition. 

146.  In  interference  cases  parties  have  the  same  rem- 
edy by  appeal  to  the  examiners-in-chief,  to  the  Commis- 

Adm.   Law— 32. 


498  ADMINISTRATIVE    LAW. 

sioner,  and  to  the  court  of  appeals  of  the  District  of  Co- 
lumbia, as  in  ex  parte  cases. 

147.  Appeals  m  interference  cases  must  be  accom- 
panied by  brief  statements  of  the  reasons  therefor.  Par- 
ties will  be  required,  to  file  six  copies  of  printed  briefs  of 
their  arguments,  the  appellant  five  days  before  the  hear- 
ing and  the  appellee  one  day. 

148.  From  the  adverse  decision  of  the  Commissioner 
upon  the  claims  of  an  application  and  in  interference 
cases,  an  appeal  may  be  taken  to  the  court  of  appeals 
of  the  District  of  Columbia  in  the  manner  prescribed  by 
the  rules  of  that  court. 

149.  When  an  appeal  is  taken  to  the  court  of  appeals 
of  the  District  of  Columbia,  the  appellant  will  give  no- 
tice thereof  to  the  Commissioner,  and  file  in  the  Patent 
Office  within  forty  days,  exclusive  of  Sundays  and  lioli- 
days,  from  the  date  of  the  decision  appealed  from,  his 
reasons  of  appeal  specifically  set  forth  in  writing. 

150.  Pro  forma  proceedings  will  not  be  had  in  the 
Patent  Office  for  the  purpose  of  securing  to  applicants 
an  appeal  to  the  court  of  appeals  of  the  District  of  Co- 
lumbia. 

(See  Eules  of  the  Court  of  Appeals  of  the  District  of 
Columbia. ) 

HEARINGS   AND   INTERVIEWS. 

151.  Hearings  will  be  had  by  the  Commissioner  at  10 
o'clock  a.  m.,  and  by  the  board  of  examiners-in-chief  at 

I  o'clock  p.  m.,  and  by  the  examiner  of  interferences  at 

II  o'clock  a.  m.,  on  the  day  appointed,  unless  some  other 
hour  be  specially  designated.  If  either  party  in  a  con- 
tested case,  or  the  appellant  in  an  ex  parte  case,  appear 


APPENDIX.  499 

at  the  proper  time,  he  will  be  heard.  After  the  clay  of 
hearing,  a  contested  case  will  not  be  taken  up  for  oral 
argument  except  by  consent  of  all  parties.  If  the  en- 
gagements of  tlie  tribunal  having  jurisdiction  are  such  as 
to  prevent  the  ease  from  being  taken  up  on  the  day  of 
hearing,  a  new  assignment  will  be  made,  or  the  case  will 
he  continued  from  day  to  day  until  heard.  Unless  it 
shall  be  otherwise  ordered  before  the  hearing  begins,  oral 
arguments  will  be  limited  to  one  hour  for  each  party  in 
contested  cases,  and  to  one-half  hour  in  other  cases. 
After  a  contested  case  has  been  argued,  nothing  further 
relating  thereto  will  be  heard  unless  upon  request  of  the 
tribunal  having  jurisdiction  of  the  case;  and  all  inter- 
views for  this  purpose  with  parties  in  interest  or  their 
attorneys  will  be  invariably  denied. 

152.  Interviews  witli  examiners  concerning  applica- 
tions and  other  matters  pending  before  the  office  must  be 
had  in  the  examiners'  rooms  at  such  times,  within  office 
hours,  as  the  respective  examiners  may  designate;  in  the 
absence  of  the  primary  examiners,  with  the  assistant  in 
charge.  Interviews  will  not  be  permitted  at  any  other 
time  or  place  without  the  written  authority  of  the  Com- 
missioner. Interviews  for  the  discussion  of  pending  ap- 
plications will  not  be  had  prior  to  the  first  official  action 
thereon. 

MOTIONS. 

L53.  In  contested  cases  reasonable  notice  of  all  mo- 
tions, and  copies  of  motion-papers  and  affidavits,  must 
be  served,  as  provided  in  Rule  l.~>4  (2).  Proof  of  such 
service  must  be  made  before  the  motion  will  be  enter- 
tained by  the  office.  Motions  will  not  be  heard  in  the  ab- 
sence of  either  party  except  upon  default  after  due  notice. 


500  ADMINISTRATIVE    LAW. 

Motions  will  be  heard  in  the  first  instance  by  the  officer 
or  tribunal  before  whom  the  particular  case  may  be  pend- 
ing; but  an  appeal  from  the  decision  rendered  may  be 
taken  on  questions  involving  the  merits  of  the  case  to 
the  board  of  examiners-in-chief;  on  other  questions,  di- 
rectly to  the  Commissioner.  In  original  hearings  on  mo- 
tions the  moving  parties  shall  have  the  right  to  make  the 
opening  and  closing  arguments.  In  contested  cases  the 
practice  on  points  to  which  the  rules  shall  not  be  appli- 
cable will  conform,  as  nearly  as  possible,  to  that  of  the 
United  States  courts  in  equity  proceedings. 

TESTIMONY     IN     INTERFERENCES     AND     OTHER     CONTESTED 

CASES. 

l.">4. .  The  following  rules  have  been  established  for 
taking  and  transmitting  testimony  in  interferences  and 
other  contested  cases : 

l  1 )  Before  the  depositions  of  witnesses  are  taken  by 
either  party  due  notice  shall  be  given  to  the  op- 
posing party,  as  hereinafter  provided,  of  the 
time  when  and  place  where  the  depositions  will 
be  taken,  of  the  cause  or  matter  in  which  they 
are  to  be  used,  and  of  the  names  and  residences 
of  the  witnesses  to  be  examined,  and  the  oppos- 
ing party  shall  have  full  opportunity,  either  in 
person  or  by  attorney,  to  cross-examine  the  wit- 
nesses. If  the  opposing  party  shall  attend  the 
examination  of  witnesses  not  named  in  the  no- 
tice, and  shall  either  cross-examine  such  wit- 
nesses or  fail  to  object  to  their  examination, 
he  shall  be  deemed  to  have  waived  his  right  to 
object  to  such  examination  for  want  of  notice. 
Neither  party  shall   take  testimony  in   more 


APPENDIX.  501 

than  one  place  at  the  same  time,  nor  so  nearly 
at  the  same  time  that  reasonable  opportunity 
for  travel  from  one  place  of  examination  to  the 
other  can  not  be  had. 

(2)  The  notice  for  taking  testimony  or  for  motions 
must  be  served  (unless  otherwise  stipulated  in 
an  instrument  in  writing'  tiled  in  the  case)  upon 
the  attorney  of  record,  if  there  be  one,  or,  if 
there  be  no  attorney  of  record,  upon  the  adverse 
party.  Reasonable  time  must  be  given  therein 
for  such  adverse  party  to  reach  the  place  of  ex- 
amination. Service  of  such  notice  may  be  made 
in  either  of  the  following  ways:  (1)  By  deliv- 
ering a  copy  of  the  notice  to  the  adverse  parly 
or  his  attorney;  (2)  by  leaving  a  copy  at  the 
usual  place  of  business  of  the  adverse  party  or 
his  attorney  with  some  one  in  his  employment; 
(3)  when  such  adverse  party  or  his  attorney 
has  no  usual  place  of  business,  by  leaving  a 
copy  at  his  residence,  with  a  member  of  his 
family  over  fourteen  years  of  age  and  of  dis- 
cretion; (4)  transmission  by  registered  letter; 
(5  |  by  express.  Whenever  it  shall  be  satisfac- 
torily shown  to  the  Commissioner  that  neither 
of  the  above  modes  of  obtaining  or  reserving 
notice  is  practicable,  the  notice  may  he  pub- 
lished in  the  Official  Gazette.  Such  notice 
shall,  with  sworn  proof  of  the  fad,  time,  and 
mode  of  service  thereof,  be  al  tached  to  the  depo- 
sit ion  or  depositions  whether  the  opposing 
party  shall  have  cross  examined  or  not. 

(3)  Each  witness  before  testifying  shall  lie  duly 
sworn  according  to  law  bv  the  officer  before 


502  ADMINISTRATIVE    LAW. 

whom  his  deposition  shall  be  taken.  The  depo- 
sition shall  be  carefully  read  over  by  the  wit- 
ness, or  by  the  officer  to  him,  and  shall  then  be 
subscribed  by  the  witness  in  the  presence  of  the 
officer.  The  officer  shall  annex  to  the  deposi- 
tion his  certificate  showing  (1)  the  due  ad- 
ministration of  the  oath  by  the  officer  to  the 
witness  before  the  commencement  of  his  testi 
mony;  (2)  the  name  of  the  person  by  whom 
the  testimony  was  written  out,  and  the  fact 
that,  if  not  written  by  the  officer,  it  was  written 
in  his  presence;  (3)  the  presence  or  absence  of 
the  adverse  party ;  (4)  the  place,  day,  and  hour 
of  commencing  and  taking  the  deposition;  (5) 
the  reading  by,  or  to,  each  witness  of  his  depo 
sition  before  he  signs  the  same;  and  (6)  the 
fact  that  the  officer  was  not  connected  by  blood 
or  marriage  with  either  of  the  parties,  nor  in- 
terested, directly  or  indirectly,  in  the  matter 
in  controversy.  The  officer  shall  sign  the  cer- 
tificate and  affix  thereto  his  seal  of  office,  if  he 
have  such  seal.  He  shall  then,  without  delay, 
securely  seal  up  all  the  evidence,  notices,  and 
paper  exhibits,  inscribe  upon  the  envelope  a 
certificate  giving  the  title  of  the  case,  the  name 
of  each  witness,  and  the  date  of  sealing,  address 
the  package,  and  forward  the  same  to  the  Com 
missioner  of  Patents.  If  the  weight  or  bulk 
of  an  exhibit  shall  exclude  it  from  the  envelope, 
it  shall  be  authenticated  by  the  officer  and 
transmitted  in  a  separate  package,  marked  and 
addressed  as  above  provided. 


APPENDIX.  503 

(4)    If  a  party  shall  be  unable  to  take  any  testimony 
within  the  time  limited,  and  desires  an  exten- 
sion for  such  purpose,  he  must  file  a  motion,  ac- 
companied by  a  statement  under  oath  setting 
forth   specifically  the  reason  why   such    testi- 
mony has  not  been  taken,  and  distinctly  aver- 
ring that  such  motion  is  made  in  good  faith, 
and  not  for  the  purpose  of  delay.    If  either  par- 
ty shall  be  unable  to  procure  the  testimony  of  a 
witness  or  witnesses  within  the  time  limited, 
and  desires  an  extension  for  such  purpose,  he 
must  file  a  motion,  accompanied  by  a  statement 
under  oath  setting-  forth  the  cause  of  such  in- 
ability, the  name  or  names  of  such  witness  or 
witnesses,  the  facts  expected  to  be  prove. I  by 
such  witness  or  witnesses,  the  steps  which  have 
been  taken  to  procure  such  testimony,  and  the 
dates  on  which  efforts  have  been  made  to  pro- 
cure it.     (See  11  tile  153.) 
(5)   When  a  party  relies  upon  a  caveat  to  establish 
the  date  of  his  invention,  the  caveat  itself,  or  a 
certified  copy  thereof,  must  be  filed  in  evidence, 
with  due  notice  to  the  opposite  party. 
(G)  Upon  notice  given  to  the  opposite  party  before 
the  <dosing  «>f  t  lie  testimony,  any  official  record, 
and  any  special  matter  contained  in  a  printed 
publication,  if  competent   evidence  and   perti- 
nent to  the  issue,   may  be  used  as  evidence  at 
the  hearing. 
(7)   All  depositions  which  are  taken  musl  be  duly 
filed   in  the   Patent    Office.     On   refusal    I.,   file. 
the  office  at  its  discretion  will  mil  further  hear 


504  ADMINISTRATIVE    LAW. 

or  consider  the  contestant  with  whom  the  re- 
fusal lies;  and  the  office  may,  at  its  discretion, 
receive  and  consider  a  copy  of  the  withheld  dep- 
osition, attested  by  such  evidence  as  is  pro- 
curable. 

155.  The  pages  of  each  deposition  must  be  numbered 
consecutively,  and  the  name  of  the  witness  plainly  and 
conspicuously  written  at  the  top  of  each  page.  The  testi- 
mony must  be  written  upon  legal-cap  or  foolscap  paper, 
with  a  wide  margin  on  the  left-hand  side  of  the  page,  and 
with  the  writing  on  one  side  only  of  the  sheet. 

156.  The  testimony  will  be  taken  in  answer  to  inter- 
rogatories,  with  the  questions  and  answers  committed  to 
writing  in  their  regular  order  by  the  officer,  or,  in  his 
presence,  by  some  person  not  interested  in  the  case,  either 
as  a  party  thereto  or  as  attorney.  But  with  the  written 
consent  of  the  parties  the  testimony  may  he  taken  steiw- 
graphically,  <tn<l  the  deposition  may  he  written  out  by 
other  persons  in  the  presence  of  flic  officer. 

Where  testimony  is  taken  stenographic-ally,  a  long- 
hand or  typewritten  copy  shall  be  read  to  the  witness,  or 
read  over  by  him,  as  soon  as  it  can  be  made,  and  shall  be 
signed  by  him  as  provided  in  paragraph  3  of  Rule  154. 
Xo  officer  who  is  connected  by  blood  or  marriage  with 
either  of  the  parties,  or  interested,  directly  or  indirectly, 
in  the  matter  in  controversy,  either  as  counsel,  attorney, 
agent,  or  otherwise,  is  competent  to  take  depositions,  un- 
less with  the  written  consent  of  all  the  parties. 

157.  By  leave  of  the  Commissioner,  first  obtained,  tes- 
timony taken  in  an  interference  proceeding  may  be  used 
in  any  other  or  subsequent  interference  proceeding,  so 
far  as  relevant  and  material,  subject,  however,  to  the 
right  of  any  contesting  party  to  recall  witnesses  whose 


APPENDIX. 


505 


depositions  have  been  taken,  and  to  take  other  testimony 
in  rebuttal  of  the  depositions. 

158.  By  leave  of  the  Commissioner,  first  obtained,  tes- 
timony may  be  taken  in  foreign  countries,  upon  comply- 
ing with  the  following  requirements  : 

(1)  Such  permission  will  be  granted  only  upon  mo- 
tion duly  made.  |  Sec  Rule  153.)  The  motion 
must  designate  a  place  for  the  examination  of 
the  witnesses  at  which  an  officer  duly  qualified 
to  take  testimony  under  the  laws  of  the  United 
States  in  a  foreign  country  shall  reside,  and  it 
must  be  accompanied  by  a  statement  under 
oath  that  the  motion  is  made  in  good  faith,  and 
not  for  purposes  of  delay  or  of  vexing  or 
harassing  any  party  to  the  case;  it  must  also 
set  forth  the  names  of  the  witnesses,  the  par- 
ticular facts  to  which  it  is  expected  each  will 
testify,  and  the  grounds  on  which  is  based  the 
belief  that  each  will  so  testify. 

(2)  It  must  appear  that  the  testimony  desired  is 
material  and  competent,  and  that  it  can  not  be 
taken  in  this  country  at  all,  or  can  not  be  taken 
here  without  hardship  and  injury  to  the  mov- 
ing party  greatly  exceeding  that  to  which  the 
opposite  party  will  be  exposed  by  the  taking  of 
such  testimony  abroad. 

(3)  Upon  the  granting  of  such  motion,  a  time  will 
be  set  within  which  the  moving  party  shall  file 
in  duplicate  the  interrogatories  to  be  pro- 
pounded to  each  witness,  and  serve  a  copy  of 
the  same  upon  each  adverse  party,  who  may, 
within  a  designated  time,  file,  in  duplicate, 
cross-interrogatories.    Objections  to  any  of  the 


506  ADMINISTRATIVE    LAW. 

interrogatories  or  cross-interrogatories  may  be 
filed  at  any  time  before  the  depositions  are 
taken,  and  such  objections  will  be  considered 
and  determined  upon  the  hearing  of  the  case. 

(4)  As  soon  as  the  interrogatories  and  cross-inter- 
rogatories are  decided  to  be  in  proper  form,  the 
Commissioner  will  cause  them  to  be  forwarded 
to  the  proper  officer,  with  the  request  that, 
upon  payment  of,  or  satisfactory  security  for, 
his  official  fees,  he  notify  the  witnesses  named 
to  appear  before  him  within  a  designated  time 
and  make  answer  thereto  under  oath ;  and  that 
he  reduce  their  answers  to  writing,  and  trans- 
mit the  same,  under  his  official  seal  and  signa- 
ture, to  the  Commissioner  of  Patents,  with  the 
certificate  prescribed  in  Rule  154  (3). 

(5)  By  stipulation  of  the  parties  the  requirements 
of  paragraph  3  as  to  written  interrogatories 
and  cross-interrogatories  may  be  dispensed 
with,  and  the  testimony  may  be  taken  before 
the  proper  officer  upon  oral  interrogatories  by 
the  parties  or  their  agents. 

(6)  Unless  false  swearing  in  the  giving  of  such  tes- 
timony before  the  officer  taking  it  shall  be  pun- 
ishable as  perjury  under  the  laws  of  the  foreign 
state  where  it  shall  be  taken,  it  will  not  stand 
on  the  same  footing  in  the  Patent  Office  as  tes- 
timony  duly  taken  in  the  United  States;  but  its 
weight  in  each  case  will  be  determined  by  the 
tribunal  having  jurisdiction  of  such  case. 

159.  Evidence  touching  the  matter  at  issue  will  not  be 
considered  on  the  hearing  which  shall  not  have  been 
taken  and  filed  in  compliance  with  these  rules.    But  no- 


APPENDIX.  507 

tice  will  not  be  taken  of  merely  formal  or  technical  objec- 
tions which  shall  not  appear  to  have  wrought  a  substan- 
tial injury  to  the  party  raising  them;  and  in  case  of  such 
injury  it  must  be  made  to  appear  that,  as  soon  as  the 
party  became  aware  of  the  ground  of  objection,  he  gave 
notice  thereof  to  the  office,  and  also  to  the  opposite  party, 
informing  him  at  the  same  time  that,  unless  it  should  be 
removed,  he  (the  objector)  should  urge  his  objection  at 
the  hearing.  This  rule  is  not  to  be  so  construed  as  to 
modify  established  rules  of  evidence,  which  will  be  ap- 
plied strictly  in  all  practice  before  the  office. 

160.  The  law  requires  the  clerks  of  the  various  courts 
of  the  United  States  to  issue  subpoenas  to  secure  the  at- 
tendance of  witnesses  whose  depositions  are  desired  as 
evidence  in  contested  cases  in  the  Patent  Office. 

161.  After  testimony  is  filed  in  the  office  it  may  be 
inspected  by  any  party  to  the  case,  but  it  can  not  be  with- 
drawn for  the  purpose  of  printing.  It  may  be  printed  by 
someone  specially  designated  by  the  office  for  that  par- 
pose,  under  proper  restrictions. 

162.  Thirty-one  or  more  printed  copies  of  the  testi- 
mony must  be  furnished,  five  for  the  use  of  the  office,  one 
for  each  of  the  opposing  parties,  and  twenty-five  for  tlie 
court  of  appeals  of  the  District  of  Columbia,  should  ap- 
peal be  taken.  If  no  appeal  be  taken,  the  twenty-five 
copies  will  be  returned  to  the  parti/  filing  them.  The  pre- 
liminary statement  required  by  Rule  110  must  be  printed 
as  a  part  of  the  record.  These  copies  must  be  filed  not 
less  than  ten  days  before  the  day  of  hearing.  They  will 
be  of  the  same  size,  both  page  and  print,  as  the  Rules  of 
Practice,  with  (lie  names  of  the  witnesses  at  the  top  of 
the  pages  over  their  testimony,  and  will  contain  indexes 


508  ADMINISTRATIVE    LAW. 

with  the  names  of  all  witnesses  and  reference  to  the 
pages  where  copies  of  papers  and  documents  introduced 
as  exhibits  are  shown. 

When  but  one  of  the  contestants  takes  testimony,  he 
may  furnish  six  or  more  bound  type-written  copies  of  the 
required  size. 

When  it  shall  appear,  on  motion  duly  made  and  by  sat- 
isfactory proof,  that  a  party,  by  reason  of  poverty,  is  un- 
able to  print  his  testimony,  the  printing  may  be  dis- 
pensed with;  but  in  such  case  typewritten  copies  must 
be  furnished — one  for  the  office  and  one  for  each  adverse 
party.  Printing  of  the  testimony  can  not  be  dispensed 
with  upon  the  stipulation  of  the  parties. 

163.  Briefs  in  all  contested  cases  shall  be  submitted 
in  printed  form,  and  shall  be  of  the  same  size  and  the 
same  as  to  page  and  print  as  the  printed  copies  of  testi- 
mony. But  in  case  satisfactory  reason  therefor  is  shown 
to  the  office,  typewritten  briefs  may  be  submitted.  Briefs 
shall  be  filed  three  days  before  the  hearing,  except  as  pro- 
vided in  Rule  147.  By  consent  of  the  parties  they  may 
be  filed  later,  but  in  any  case  must  be  filed  before  the 
hearing.  If  either  party  fail  to  comply  with  this  regula- 
tion, no  extension  of  time  will  be  granted  for  the  purpose, 
except  upon  consent  of  the  adverse  parties. 

ISSUE. 

164.  If,  on  examination,  it  shall  appear  that  the  appli- 
cant is  justly  entitled  to  a  patent  under  the  law,  a  notice 
of  allowance  will  be  sent  him  or  his  attorney,  calling  for 
the  payment  of  the  final  fee  within  six  months  from  the 
date  of  such  notice  of  allowance,  upon  the  receipt  of 
which  within  the  time  fixed  by  law  the  patent  will  be 
prepared  for  issue.     ( See  Rules  207,  208. ) 


APPENDIX. 


509 


165.  After  notice  of  the  allowance  of  an  application 
is  given,  the  case  will  not  be  withdrawn  from  issue  except 
by  approval  of  the  Commissioner,  and  if  withdrawn  for 
further  action  on  the  part  of  the  office  a  new  notice  of 
allowance  will  l>e  given.  When  tin-  final  fee  lias  been 
paid  upon  an  application  for  letters  patent,  and  the  case 
has  received  its  date  and  number,  it  will  not  be  with- 
drawn or  suspended  from  issue  on  account  of  any  mis- 
take or  change  of  purpose  of  the  applicant  or  his  attor- 
ney, nor  for  the  purpose  of  enabling  the  inventor  to  pro- 
cure a  foreign  patent,  nor  for  any  other  reasons  except 
mistake  on  the  part  of  the  office,  or  because  of  fraud,  or 
illegality  in  the  application,  or  for  interference,  i  See 
Rule  78.  i 

160.  Whenever  the  <  Commissioner  shall  direct  the  with- 
drawal of  an  application  from  issue  on  request  of  an  ap- 
plicant for  reasons  not  prohibited  by  Rule  165,  such  with- 
drawal shall  not  operate  to  stay  the  period  of  one  year 
running  against  the  application,  which  begins  to  attach 
from  the  date  of  the  notice  of  allowance. 

DATE.  DURATION,  AND  FORM  OF  PATENTS. 

167.  Every  patent  will  bear  date  as  of  a  day  not  later 
than  six  months  from  the  time  the  application  was  passed 
and  allowed  and  notice  thereof  was  mailed  to  the  appli- 
cant or  his  attorney,  if  within  that  period  the  final  fee  be 
paid  to  the  Commissioner  of  Patents,  or  if  it  be  paid  to 
the  Treasurer  or  any  of  the  assistant  treasurers  or  <les- 
ignated  depositaries  of  the  United  States,  and  the  certifi- 
cate promptly  forwarded  to  the  Commissioner  of  Pat- 
ents; and  if  the  final  fee  be  not  paid  within  thai  period, 
the  patent  will  be  withheld,    i  See  Rule  175.) 

A  patent  will   not   be  antedated. 


510  ADMINISTRATIVE    LAW. 

168.  Every  patent  will  contain  a  short  title  of  the  in- 
vention or  discovery  indicating  its  nature  and  object,  and 
a  grant  to  the  patentee,  his  heirs  and  assigns,  for  the 
term  of  seventeen  years,  of  the  exclusive  right  to  make, 
use,  and  vend  the  invention  or  discovery  throughout  the 
United  States  and  the  Territories  thereof.  The  duration 
of  a  design  patent  may  be  for  the  term  of  three  and  a 
half,  seven,  or  fourteen  years,  as  provided  in  Eule  SO.  A 
copy  of  the  specifications  and  drawings  will  be  annexed 
to  the  patent  and  form  part  thereof. 

DELIVERY. 

1G9.  The  patent  will  be  delivered  or  mailed  on  the 
day  of  its  date  to  the  attorney  of  record,  if  there  be  one; 
if  not,  to  the  patentee;  or,  if  the  attorney  so  request,  to 
the  patentee  or  assignee  of  an  interest  therein. 

CORRECTION  OF  ERRORS  IN  LETTERS  PATENT. 

170.  Whenever  a  mistake,  incurred  through  the  fault 
of  the  office,  is  clearly  disclosed  by  the  records  or  files  of 
the  office,  a  certificate,  stating  the  fact  and  nature  of  such 
mistake,  signed  by  the  Commissioner  of  Patents,  and 
sealed  with  the  seal  of  the  Patent  Office,  will,  at  the  re- 
quest of  the  patentee  or  his  assignee,  be  indorsed  without 
charge  upon  the  letters  patent,  and  recorded  in  the  rec- 
ords of  patents,  and  a  printed  copy  thereof  attached  to 
each  printed  copy  of  the  specification  and  drawing. 

Whenever  a  mistake,  incurred  through  the  fault  of  the 
office,  constitutes  a  sufficient  legal  ground  for  a  reissue, 
such  reissue  will  be  made,  for  the  correction  of  such  mis- 
take only,  without  charge  of  office  fees,  at  the  request  of 
the  patentee. 


APPENDIX.  511 

Mistakes  not  incurred  through  the  fault  of  the  office, 
and  not  affording  legal  grounds  for  reissues,  will  not 
be  corrected  after  the  delivery  of  the  letters  patent  to 
the  patentee  or  his  agent. 

Changes  or  corrections  will  not  be  made  in  letters 
patent  after  the  delivery  thereof  to  the  patentee  or  his 
attorney,  except  as  above  provided. 

ABANDONED,     FORFEITED,    REVIVED,    AND     RENEWED    APPLI- 
CATIONS. 

171.  An  abandoned  application  is  one  which  has  not 
been  completed  and  prepared  for  examination  within 
one  year  after  the  filing  of  the  petition,  or  which  the 
applicant  has  failed  to  prosecute  within  one  year  after 
any  action  therein  of  which  notice  has  been  duly  given 
(see  Rules  31  and  77),  or  which  the  applicant  has  ex- 
pressly abandoned  by  filing  in  the  office  a  written  dec- 
laration of  abandonment,  signed  by  himself  and  assignee, 
if  any,  identifying  his  application  by  title  of  invention, 
serial  number,  and  date  of  filing.      (See  Rule  60.) 

Prosecution  of  an  application  to  save  it  from  aban- 
donment must  include  such  proper  action  as  the  con- 
dition of  the  case  may  require.  The  admission  of  an 
amendment  not  responsive  to  the  last  official  action,  or 
refusal  to  admit  the  same,  and  any  proceedings  rela- 
tive thereto,  shall  not  operate  to  save  the  application 
from  abandonment  under  section  4891  of  the  Revised 
Statutes. 

172.  Before  an  application  abandoned  by  failure  to 
complete  or  prosecute  <;m  be  revived  as  a  pending  ap- 
plication, it  must  be  shown  to  the  satisfaction  of  the 
Commissioner  that  the  delay  in  the  prosecution  of  the 
same  was  unavoidable. 


512  ADMINISTRATIVE    LAW. 

173.  When  a  new  application  is  filed  in  place  of  an 
abandoned  or  rejected  application,  a  new  petition,  speci- 
fication, oath,  drawing,  and  fee  will  be  required;  but 
the  old  model,  if  suitable,  may  be  used. 

174.  A  forfeited  application  is  one  upon  which  a  pat- 
ent has  been  withheld  for  failure  to  pay  the  final  fee 
within  the  prescribed  time.      (See  Rule  167. ) 

175.  When  the  patent  has  been  withheld  by  reason 
of  nonpayment  of  the  final  fee,  any  person,  whether  in- 
ventor or  assignee,  who  has  an  interest  in  the  invention 
for  which  such  patent  was  ordered  to  issue  may  file  a 
renewal  of  the  application  for  the  same  invention;  but 
such  second  application  must  be  made  within  two  years 
after  the  allowance  of  the  original  application.  Upon 
the  hearing  of  such  new  application  abandonment  will 
be  considered  as  a  question  of  fact. 

176.  In  such  renewal  the  oath,  petition,  specification, 
drawing,  and  model  of  the  original  application  may  be 
used  for  the  second  application;  but  a  new  fee  will  be 
required.  The  second  application  will  not  be  regarded 
for  all  purposes  as  a  continuation  of  the  original  one, 
but  must  bear  date  from  the  time  of  renewal  and  be 
subject  to  examination  like  an  original  application. 

177.  Forfeited  and  abandoned  applications  will  not 
be  cited  as  references. 

ITS.  Notice  of  the  filing  of  subsequent  applications 
will  not  be  given  to  applicants  while  their  cases  remain 
forfeited. 

179.  Topics  of  the  files  of  forfeited  and  abandoned 
applications  may  be  furnished  when  ordered  by  the 
Commissioner.  The  requests  for  such  copies  must  be 
presented  in  the  form  of  a  petition  properly  verified  as 


APPENDIX. 


513 


to  all  matters  not  appearing  of  record  in  the  Patent 
Office.      (See  Form  34.) 


EXTENSIONS. 


180.  Patents  can  not  be  extended   except    by   act    of 


Congress. 


DISCLAIMERS. 


181.  Whenever,  through  inadvertence,  accident,  or 
mistake,  and  without  any  fraudulent  or  deceptive  in- 
tention, a  patentee  has  claimed  as  his  invention  or  dis- 
covery more  than  he  had  a  right  to  claim  as  new,  his 
patent  shall  be  valid  for  all  that  part  which  is  truly 
and  justly  It  is  own,  provided  the  same  is  a  material  or 
substantial  part  of  the  thing  patented;  and  any  such 
patentee,  his  heirs  or  assigns,  whether  of  the  whole  or 
any  sectional  interest  therein,  may,  on  payment  of  the 
fee  required  by  law  (ten  dollars),  make  disclaimer  of 
such  parts  of  the  thing  patented  as  he  or  they  shall  not 
choose  to  claim  or  to  hold  by  virtue  of  the  patent  or 
assignment,  stating  therein  the  extent  of  his  interest  in 
such  patent.  Such  disclaimer  shall  be  in  writing,  at- 
tested by  one  or  more  witnesses,  and  recorded  in  the 
Patent  Office;  and  it  shall  thereafter  be  considered  as 
part  of  the  original  specification  to  the  extent  of  the 
interest  possessed  by  the  claimanl  and  by  those  claim- 
ing under  h i in  after  the  record  thereof.  But  no  such 
disclaimer  shall  affeel  any  action  pending  ;it  the  time  of 
tiling  the  same,  except  as  to  the  question  of  unreason- 
able neglect  or  delay  in  tiling  it. 

1*2.  Such  disclaimer  must  lie  distinguished  from 
those  which  are  embodied  in  original  or  reissue  applica- 
tions as  first   filed  or  subsequently  amended,  referring 

\dm.  Law — 33. 


514  ADMINISTRATIVE    LAW. 

to  matter  shown  or  described,  but  to  which  the  disclaim- 
ant  does  not  choose  to  claim  title,  and  also  from  those 
made  to  avoid  the  continuance  of  an  interference.  Such 
disclaimers  must  be  signed  by  the  applicant  in  person 
and  must  be  duly  witnessed,  and  require  no  fee.  (See 
EulelOT.) 

CAVEATS. 

183.  A  caveat,  under  the  patent  law,  is  a  notice  given 
to  the  Patent  Office  of  the  caveator's  claim  as  inventor, 
in  order  to  prevent  the  grant  of  a  patent  to  another 
person  for  the  same  alleged  invention  upon  an  applica- 
tion filed  during  the  life  of  the  caveat  without  notice 
to  the  caveator. 

184.  Any  person  who  has  made  a  new  invention  or 
discovery  and  desires  further  time  to  mature  the  same 
may,  on  payment  of  a  fee  of  ten  dollars,  file  in  the 
Patent  Office  a  caveat  setting  forth  the  object  and  the 
distinguishing  characteristics  of  the  invention,  and 
praying  protection  of  his  right  until  he  shall  have  ma- 
tured his  invention.  Such  caveat  shall  be  filed  in  the 
confidential  archives  of  the  office  and  preserved  in  se- 
crecy, and  shall  be  operative  for  the  term  of  one  year 
from  the  filing  thereof. 

185.  The  caveat  may  be  renewed,  on  request  in  writ- 
ing, by  the  payment  of  a  second  caveat  fee  of  ten  dol- 
lars, and  it  will  continue  in  force  for  one  year  from  the 
date  of  the  payment  of  such  second  fee.  Subsequent 
renewals  may  be  made  with  like  effect.  If  a  caveat  be 
not  renewed,  it  will  still  be  preserved  in  the  secret  ar- 
chives of  the  office. 


APPENDIX.  515 

186.  The  caveat  must  comprise  a  specification,  oath, 
and,  when  the  nature  of  the  case  admits  of  it,  a  draw- 
ing, and,  like  an  application  for  a  patent,  must  be  lim- 
ited to  a  single  invention  or  improvement. 

187.  The  same  particularity  of  description  is  not  re- 
quired in  a  caveat  as  in  an  application  for  a  patent; 
but  the  caveat  must  set  forth  the  object  of  the  invention 
and  the  distinguishing  characteristics  thereof,  and  it 
should  be  sufficiently  precise  to  enable  the  office  to 
judge  whether  there  is  a  probable  interference  when  a 
subsequent  application  is  filed  for  a  similar  invention. 
If,  upon  examination,  a  caveat  be  found  defective  in 
this  respect,  amendment  will  be  required.  Without 
compliance  with  Rules  184,  186,  187,  and  189,  the  ca- 
veator will  not  be  entitled  to  the  notice  provided  for  in 
Rule  190. 

188.  The  oath  of  the  caveator  must  set  forth  that  he 
believes  himself  the  original  and  first  inventor  of  the 
art,  machine,  or  improvement  set  forth  in  his  caveat. 
(See  Rule  47.) 

189.  The  caveat  should  be  accompanied,  when  prac- 
ticable, by  full  and  accurate  drawings,  separate  from 
the  specification,  well  executed  on  tracing  muslin  or 
paper  that  may  be  folded.      ( See  Rule  51.) 

190.  If  at  any  time  within  one  year  after  the  filing  or 
renewal  of  a  caveat  another  person  shall  file  an  appli- 
cation for  an  invention  which  would  in  any  manner  in- 
terfere with  the  invention  set  forth  in  such  caveat,  then 
such  application  will  \u>  suspended  and  notice  thereof 
will  be  sent  to  the  person  filing  the  caveat. 

If  the  caveator  shall  file  a  complete  application  with- 
in the  time  prescribed,  and  if  the  invention  be  found  pat- 
entable, he  will  lie  entitled  to  an  interference  with  the 


516  ADMINISTRATIVE    LAW. 

previous  application,  for  the  purpose  of  proving  prior- 
ity of  invention  and  obtaining  the  patent  if  he  be  ad- 
judged the  prior  inventor.  The  caveator,  if  he  would 
avail  himself  of  his  caveat,  must  file  his  application 
within  three  months  from  the  expiration  of  the  time 
regularly  required  for  the  transmission  to  him  of  the 
notice  deposited  in  the  post-office  at  Washington.  The 
day  on  which  the  time  for  filing  expires  will  be  men- 
tioned in  the  notice  or  indorsement  thereon. 

191.  The  caveator  will  not  be  entitled  to  notice  of  any 
application  pending  at  the  time  of  filing  his  caveat,  nor 
of  any  application  filed  after  the  expiration  of  one  year 
from  the  date  of  the  filing  or  renewal  thereof. 

192.  A  caveat  confers  no  rights  and  affords  no  pro- 
tection except  as  tcr  notice  of  an  interfering  application 
filed  during  its  life,  giving  the  caveator  the  opportu- 
nity of  proving  priority  of  invention  if  he  so  desires.  It 
may  be  used  as  evidence  in  contests,  as  provided  in 
Rule  154  (5). 

193.  There  is  no  provision  of  law  making  the  caveat 
assignable,  although  the  alleged  invention  therein  set 
forth  is  assignable,  and  the  caveat  may  be  used  as  means 
of  identifying  the  invention  transferred  in  an  assign- 
ment. 

191.  Caveat  papers  cannot  be  withdrawn  from  the 
office  after  they  have  been  filed;  but  copies  of  the  pa- 
pers may  be  obtained  at  the  usual  rates  by  the  caveator 
or  anv  person  duly  authorized  by  him.  Additional  pa- 
pers, if  containing  new  matter,  must  be  filed  as  a  sep- 
arate caveat,  with  another  fee. 


APPENDIX. 


517 


ASSIGNMENTS. 

195.  Evei\  patent  or  any  interest  therein  shall  be 
assignable  in  law  by  an  instrument  in  writing;  and  the 
patentee  or  his  assigns  or  legal  representatives  may,  in 
like  manner,  grant  and  convey  an  exclusive  right  under 
the  patent  to  the  whole  or  any  specified  part  of  the 
United  States. 

196.  Interests  in  patents  may  be  vested  in  assignees, 
in  grantees  of  exclusive  sectional  rights,  in  mortgagees, 
and  in  licensees. 

(1)  An  assignee  is  a  transferee  of  the  whole  in- 
terest of  the  original  patent  or  of  an  undivid- 
ed part  of  such  whole  interest,  extending  to 
every  portion  of  the  United  States.  The  as- 
signment must  be  written  or  printed  and  duly 
signed. 

(2)  A  grantee  acquires  by  the  grant  the  exclusive 
right,  under  the  patent,  to  make,  use,  and  vend, 
and  to  grant  to  others  the  right  to  make,  use, 
and  vend,  the  thing  patented  within  and 
throughout  some  specified  part  of  the  United 
States,  excluding  the  patentee  therefrom.  The 
grant  must  be  written  or  printed  and  be  duly 
signed. 

(3)  A  mortgage  must  be  written  or  printed  and  be 
duly  signed. 

(4)  A  licensee  takes  an  interest  less  than  or  dif- 
ferent from  either  of  the  others.  A  license 
may  be  oral,  written,  or  printed,  and  if  writ- 
ten or  printed,  must  be  duly  signed. 

197.  An  assignment,  grant,  or  conveyance  of  a  pat- 
ent will  be  void   as  against  any  subsequent    purchaser 


518  ADMINISTRATIVE    LAW. 

or  mortgagee  for  a  valuable  consideration  without  no- 
tice unless  recorded  in  the  Patent  Office  within  three 
months  from  the  date  thereof. 

If  any  such  assignment,  grant,  or  conveyance  of  any 
patent  shall  he  acknowledged  before  any  notary  public 
of  the  several  States  or  Territories  or  the  District  of 
Columbia,  or  any  commissioner  of  the  United  States 
circuit  court,  or  before  any  secretary  of  legation  or  con- 
sular officer  authorized  to  administer  oaths  or  perform 
notarial  acts  under  section  seventeen  hundred  and  fifty 
of  the  Revised  Statutes,  the  certificate  of  such  acknowl- 
edgment, under  the  hand  and  official  seal  of  such  notary 
or  other  officer,  shall  be  prima  fade  evicU  nee  of  the  exe- 
cution of  such  assignment^  or  c<>ur<  yanci . 

198.  No  instrument  will  be  recorded  which  is  not  in 
the  English  language  and  which  docs  not,  in  the  judg- 
ment of  the  Commissioner,  amount  1<>  an  assignment, 
grant,  mortgage,  lien,  incumbrance,  or  license,  or  which 
does  not  affect  the  title  of  the  patent  or  invention  to 
which  it  relates.  Such  instrument  should  identify  the 
patent  by  date  and  number;  or,  if  the  invention  be  un- 
patented. Hi,,  name  of  the  inventor,  (lie  serial  number, 
and  date  of  the  application  should  he  stated. 

199.  Assignments  which  are  made  conditional  on  the 
performance  of  certain  stipulations,  as  the  payment  of 
money  if  recorded  in  tin1  office,  are  regarded  as  abso- 
lute assignments  until  cameled  with  the  written  con- 
senl  of  both  parties  or  by  the  decree  of  a  competent 
court.  The  office  has  no  means  for  determining  wheth- 
er such  conditions  have  been  fulfilled. 

200.  in  every  case  where  it  is  desired  that  the  patents 
shall  issue  to  an  assignee,  the  assignment  must  be  re- 
corded in  the  Patent  Office  at  a  date  not  later  than  the 


APPENDIX.  519 

day  on  which  the  final  fee  is  paid.  (See  Eule  26.) 
The  date  of  the  record  is  the  date  of  the  receipt  of  the 
assignment  at  the  office. 

201.  The  receipt  of  assignments  is  generally  acknowl- 
edged by  the  office.  They  are  recorded  in  regular  or- 
der as  promptly  as  possible,  and  then  transmitted  to  the 
persons  entitled  to  them. 

OFFICE  FEES. 

202.  Nearly  all  the  fees  payable  to  the  Patent  Office 
are  positively  required  by  law  to  be  paid  in  advance — 
that  is,  upon  making  application  for  any  action  by  the 
office  for  which  a  fee  is  payable.  For  the  sake  of  uni- 
formity and  convenience,  the  remaining  fees  will  be 
required  to  be  paid  in  the  same  manner. 

203.  The  following  is  the  schedule  of  fees  and  of  prices 
of  publications  of  the  Patent  Office:      (See  Circulars,  i 

204.  An  order  for  a  copy  of  an  assign  men  t  must  give 
the  liber  and  page  of  the  record,  as  well  as  the  name 
of  the  inventor;  otherwise  an  extra  charge  will  be  made 
for  the  time  consumed  in  making  any  search  for  such 
assignment. 

205.  Persons  will  not  be  allowed  to  make  copies  or 
tracings  from  the  files  or  records  of  the  office.  Such 
copies  will  be  furnished,  when  ordered,  at  the  rates  al- 
ready specified. 

206.  All  payments  of  money  required  for  office  fees 
must  be  made  in  specie,  Treasury  notes,  national-bank 
notes,  certificates  of  deposit,  post-office  money  orders,  or 
certified  checks.  Money  orders  ami  checks  should  be 
made  payable  to  the  "Commissioner  of  Patents."  Pay- 
ment may  also  be  made  to  the  Treasurer,  or  to  any  of 


520  ADMINISTRATIVE    LAW. 

the  assistant  treasurers  of  the  United  States,  or  to  any 
of  the  depositaries,  national  banks,  or  receivers  of  pub- 
lie  monev,  designated  by  the  Secretary  of  the  Treasury 
for  that  purpose,  who  shall  give  the  depositor  a  re- 
ceipt or  certificate  of  deposit  therefor.  This  receipt 
or  certificate  of  deposit  shall,  in  case  of  payment  of  final 
fees,  be  deposited  in  the  mail  for  transmission  to  the 
Patent  Office,  within  six  months  from  the  allowance  of 
the  application.  Money  sent  by  mail  to  the  Patent 
Office  will  be  at  the  risk  of  the  sender.  Letters  con- 
taining money  should  be  registered.  In  no  case  should 
money  be  sent  with  models. 

207.  The  weekly  issue  closes  on  Thursday,  and  the 
patents  of  that  issue  bear  date  as  of  the  third  Tuesday 
thereafter.  If  the  final  fee  in  any  application  is  not 
paid  on  or  before  Thursday,  the  patent  will  not  go  to 
issue  until  the  following  week. 

REPAYMENT   OF   MONEY. 

208.  Money  paid  by  actual  mistake,  such  as  a  pay- 
ment in  excess,  or  when  not  required  by  law,  or  by 
neglect,  or  misinformation  on  the  part  of  the  office, 
will  be  refunded;  but  a  mere  change  of  purpose  after 
the  payment  of  money,  as  when  a  party  desires  to  with- 
draw his  application  for  a  patent  or  for  the  registration 
of  a  trade-mark,  or  to  withdraw  an  appeal,  will  not 
entitle  a  party  to  demand  such  a  return. 

PUBLICATIONS. 

209.  The  Official  Gazette,  a  weekly  publication  which 
has  been  issued  since  1872,  takes  the  place  of  the  old 
Patent  Office  Report.  It  contains  the  claims  of  all  pat- 
ents  issued,    including   reissues,    with    portions   of   the 


APPENDIX.  521 

drawings  selected  to  illustrate  the  inventions  claimed. 
It  also  contains  decisions  rendered  by  the  courts  in 
patent  cases  and  by  the  Commissioner  of  Patents,  and 
other  special  matters  of  interest  to  inventors. 

The  Gazette  is  furnished  to  subscribers  at  the  rate 
of  $5  per  annum.  When  sent  abroad,  an  additional 
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An  index  is  published  annually,  which  is  sent  to  all 
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Printed  volumes  are  issued  monthly,  containing  the 
entire  specifications  and  drawings  of  all  patents  issued 
during  the  previous  month.  These  are  authenticated  by 
the  seal  of  the  office,  and  may  be  used  as  evidence 
throughout  the  United  States.  One  copy  is  deposited 
in  the  Library  of  Congress  and  in  each  State  and  Ter- 
ritorial library,  and  one  copy  in  the  custody  of  the  clerk 
of  each  United  States  district  court,  for  general  refer- 
ence, 

LIBRARY    REGULATK  >\S. 

210.  Officers  of  the  bureau  and  members  of  the  ex- 
amining corps,  «»nlv,  are  allowed  to  enter  the  alcoves  or 
take  books  from  the  scientific  library. 

Books  taken  from  this  library  must  be  entered  in  a 
register  kept  for  the  purpose,  and  returned  on  the  call 
of  the  librarian.  They  must  not  be  taken  from  the 
building  except  by  permission  of  the  (  'oinmissioner. 

Any  book  lost  or  defaced  must  be  replaced  by  a  new 
copy. 


522  ADMINISTRATIVE    LAW. 

Patentees  and  others  doing  business  with  the  office  can 
examine  the  books  only  in  the  library  hall. 

Translations  will  be  made  only  for  official  use. 

Copies  or  tracings  from  works  in  the  library  will  be 
furnished  by  the  office  at  the  usual  rates. 

AMENDMENTS  OF  THE  RULES. 

211.  All  amendments  of  the  foregoing  rules  will  be 
published  in  the  Official  Gazette. 

QUESTIONS  NOT  SPECIFICALLY  PROVIDED  FOR. 

212.  All  cases  not  specifically  defined  and  provided 
for  in  these  rules  will  be  decided  in  accordance  with  the 
merits  of  each  case  under  the  authority  of  the  Commis- 
sioner, and  such  decision  will  be  communicated  to  the 
interested  parties  in  writing. 

213.  Questions  arising  in  applications  filed  prior  to 
January  1,  1898,  where  these  rules  do  not  apply,  shall 
be  governed  by  the  rules  of  June  18,  1897. 

Frederick  I.  Allen. 

Commissioner  of  Paten  Is. 

Department  of  the  Interior. 

December  17,  1902. 

Approved,  to  take  effect  January  1,  1903. 
E.  A.  Hitchcock. 

Secretary  of  Uic  Interior. 


APPENDIX  E. 

RULES  OF  PEACTICE  IN  CASES  BEFORE  THE 
UNITED  STATES  DISTRICT  LAND  OFFICES, 
THE  GENERAL  LAND  OFFICE,  AND  THE  DE- 
PARTMENT OF  THE  INTERIOR. 

I.      PROCEEDINGS    BEFORE    REGISTERS   AND    RECEIVERS. 
INITIATION    OF    CONTESTS. 

Rule  1. — Contests  may  be  initiated,  by  an  adverse 
party  or  other  person  against  a  party  to  any  entry, 
filing,  or  other  claim  under  laws  of  Congress  relating 
to  the  public  lands,  for  any  sufficient  cause  affecting  the 
legality  or  validity  of  the  claim. 

Rule  2. — In  every  case  of  application  for  a  hearing 
an  affidavit  must  be  filed  by  the  contestant  with  the 
register  and  receiver,  fully  setting  forth  the  facts  which 
constitute  the  grounds  of  contest.  When  the  contest 
is  against  the  heirs  of  a  deceased  entry  m  an,  the  affidavit 
shall  state  the  names  of  all  the  heirs.  If  (lie  heirs  are 
nonresident  or  unknown,  the  affldavil  shall  set  forth 
the  fact  and  be  corroborated  with  respect  thereto  by  the 
affidavit  of  one  or  more  persons. 

Rule  3. — Where  an  entry  lias  been  allowed  and  re- 
mains of  record  the  affidavit  of  the  contestan!  must  lie 
accompanied  by  the  affidavits  of  one  or  more  witnesses 
in  support  of  the  allegations  made. 


524  ADMINISTRATIVE    LAW. 

HEARINGS  IN  CONTESTED  CASES. 

Rule  4. — Registers  and  receivers  may  order  hearings 
in  all  cases  wherein  entry  has  not  been  perfected  and  no 
certificate  has  been  issued  as  a  basis  for  patent. 

Rule  5. — In  case  of  an  entry  or  location  on  which 
final  certificate  has  been  issued  the  hearing  will  be  or- 
dered only  by  direction  of  the  Commissioner  of  the  Gen- 
eral Land  Office. 

Rule  6. — Applications  for  hearings  under  Rule  5 
must  be  transmitted  by  the  register  and  receiver,  with 
special  report  and  recommendation,  to  the  Commission- 
er for  his  determination  and  instructions.    - 

NOTICE  OF  CONTEST. 

Rule  7.- — At  least  thirty  days'  notice  shall  be  given 
of  all  hearings  before  the  register  and  receiver  unless  by 
written  consent  an  earlier  day  shall  be  agreed  upon. 

Rule  8. — The  notice  of  contest  and  hearing  must 
conform  to  the  following  requirements: 

1.  It  must  be  written  or  printed. 

2.  It  must  be  signed  by  the  register  and  receiver,  or  by 
one  of  them. 

3.  It  must  state  the  time  and  place  of  hearing. 

4.  It  must  describe  the  land  involved. 

5.  It  must  state  the  register  and  receiver's  number  of 
the  entry  and  the  land  office  where  and  the  date  when 
made,  and  the  name  of  the  party  making  the  same. 

6.  It  must  give  the  name  of  the  contestant  and  briefly 
state  the  grounds  and  purpose  of  the  contest. 

7.  It  may  contain  any  other  information  pertinent  to 
the  contest. 


APPENDIX.  525. 

SERVICE  OF   NOTICE. 

Rule  9. — Personal  service  shall  be  made  in  all  cases 
when  possible  if  the  party  to  be  served  is  resident  in 
the  State  or  Territory  in  which  the  land  is  situated,  and 
shall  consist  in  the  delivery  of  a  copy  of  the  notice  to 
each  person  to  be  served.  When  the  contest  is  against 
the  heirs  of  a  deceased  entryman,  the  notice  shall  be 
served  on  each  heir.  If  the  heirs  of  the  entryman  are 
nonresident  or  unknown;,  notice  may  be  served  upon 
them  by  publication  as  hereinafter  provided.  If  the 
person  to  be  personally  served  is  an  infant  under  four- 
teen years  of  age  or  a  person  who  has  been  legally  ad- 
judged of  unsound  mind,  service  of  notice  shall  be  made 
by  delivering  a  copy  of  the  notice  to  the  statutory  guard- 
ian or  committee  of  such  infant  or  person  of  unsound 
mind,  if  there  be  one;  if  there  be  none,  then  by  deliver- 
ing a  copy  of  the  notice  to  the  person  having  the  in- 
fant or  person  of  unsound  mind  in  charge. 

Rule  10. — Personal  service  may  be  executed  by  any 
officer  or  person. 

Kile  11. — Notice  may  be  given  by  publication  only 
when  it  is  shown  by  affidavit  presented  on  behalf  of 
the  contestant  and  by  such  oilier  evidence  as  the  reg- 
ister and  receiver  may  require  that  due  diligence  has 
been  used  and  that  personal  service  can  not  Ik*  made. 
The  affidavit  must  also  state  tin-  present  post-office  ad- 
dress of  the  person  intended  to  be  served,  if  it  is  known 
to  the  affiant,  and  must  show  what  effort  has  been  made 
to  obtain  personal  service. 

Rule  12. — When  it  is  found  that  the  prescribed  serv- 
ice can  not  be  had,  either  personally  or  by  publicat  ion,  in 
time  for  the  hearing  provided  for  in  (he  notice,  the  no 


526  ADMINISTRATIVE    LAW. 

tice  may  be  returned  prior  to  the  time  fixed  for  the 
hearing,  and  a  new  notice  issued  fixing  another  time  of 
hearing,  for  the  proper  service  thereof,  an  affidavit  be- 
ing filed  by  the  contestant  showing  due  diligence  and 
inability  to  serve  the  notice  in  time. 

NOTICE  BY   PUBLICATION. 

Rule  13. — Notice  by  publication  shall  be  made  by 
advertising  the  notice  at  least  once  a  week  for  four  suc- 
cessive weeks  in  some  newspaper  published  in  the  county 
wherein  the  land  in  contest  lies ;  and  if  no  newspaper  be 
published  in  such  county,  then  in  the  newspaper  pub- 
lished in  the  county  nearest  to  such  land.  The  first 
insertion  shall  be  at  least  thirty  days  prior  to  the  day 
fixed  for  the  hearing. 

Rule  14. — Where  notice  is  given  by  publication  a 
copy  thereof  shall,  at  least  thirty  days  before  the  date 
for  the  hearing,  be  mailed,  by  registered  letter,  to  each 
person  to  be  so  notified  at  the  last  address,  if  any,  given 
by  him  as  shown  by  the  record,  and  to  him  at  his  pres- 
ent address  named  in  the  affidavit  for  publication  re- 
quired by  Rule  11,  if  such  present  address  is  stated  in 
such  affidavit  and  is  different  from  his  record  address. 
If  there  be  no  such  record  address  and  if  no  present  ad- 
dress is  named  in  the  affidavit  for  publication,  then  a 
copy  of  the  notice  shall  be  so  mailed  to  him  at  the  post- 
office  nearest  to  the  land.  A  copy  of  the  notice  shall 
also  be  posted  in  the  register's  office  for  a  period  of 
at  least  thirty  days  before  the  date  for  the  hearing 
and  still  another  copy  thereof  shall  be  posted  in  a  con- 
spicuous place  upon  the  land  for  at  least  two  weeks 
prior  to  the  date  set  for  the  hearing.  When  notice  of 
proceedings  commenced  by  the  Government  against  tim- 


APPENDIX. 


527 


ber  and  stone  entries  is  given  by  publication  the  posting 
of  notices  upon  the  land  will  not  be  required. 

PROOF  OP  SEBVICE  OF  NOTICE. 

Rule  15. — Proof  of  personal  service  shall  be  the  writ- 
ten acknowledgment  of  the  person  served  or  the  affida- 
vit of  the  person  who  served  the  notice  attached  there- 
to, stating  the  time,  place,  and  manner  of  service. 

Rule  16. — When  service  is  by  publication,  the  proof 
of  service  shall  be  a  copy  of  the  advertisement,  with  the 
affidavit  of  the  publisher  or  foreman  attached  thereto, 
showing  that  the  same  was  successively  inserted  the 
requisite  number  of  times,  and  the  date  thereof. 

NOTICE   OF   PROCEEDINGS. 

Kule  17. — Notice  of  motions,  proceedings,  orders,  and 
decisions  shall  be  in  writing,  and  may  be  served  person- 
ally or  by  registered  letter  mailed  to  the  last  address, 
if  any,  given  by  or  on  behalf  of  the  party  to  be  notified, 
as  shown  by  the  record,  and  if  there  be  no  such  record 
address,  then  to  the  post-office  nearest  to  the  land;  and 
in  all  those  contest  cases  where  notice  of  contest  is 
given  by  registered  mail  under  Rule  11,  and  the  return 
of  the  registry  receipt  shows  such  notice  to  have  been 
received  by  the  contestee,  the  address  at  which  the  no- 
tice was  so  received  shall  be  considered  as  an  address 
given  by  the  contestee,  within  the  meaning  of  this  rule. 

Rule  18. — Proof  of  service  by  mail  shall  be  the  affi- 
davit of  the  person  who  mailed  the  notice,  attached  to 
the  post-office  receipt  for  the  registered  letter. 

REHEARINGS. 

Rule  19. — Orders  for  rehearing  must  be  brought  to 


528  ADMINISTRATIVE    LAW. 

the  notice  of  the  parties  in  the  same  manner  as  in  case 
of  original  proceedings. 

CONTINUANCES.     . 

Rule  20. — A  postponement  of  a  hearing  to  a  day  to 
be  fixed  by  the  register  and  receiver  may  be  allowed  on 
the  day  of  trial  on  account  of  the  absence  of  material 
witnesses,  when  the  party  asking  for  the  continuance 
makes  an  affidavit  before  the  register  and  receiver  show- 
ing— 

1.  That  one  or  more  of  the  witnesses  in  his  behalf  is 
absent  without  his  procurement  or  consent; 

2.  The  name  and  residence  of  each  witness; 

3.  The  facts  to  which  they  would  testify  if  present; 

4.  The  materiality  of  the  evidence; 

5.  The  exercise  of  proper  diligence  to  procure  the  at- 
tendance of  the  absent  witnesses ;  and 

G.  That  affiant  believes  said  witnesses  can  be  had  at 
the  time  to  which  it  is  sought  to  have  the  trial  post- 
poned. 

Where  hearings  are  ordered  by  the  Commissioner  of 
the  General  Land  Office  in  cases  to  which  the  United 
States  is  a  party,  continuances  will  be  granted  in  accord- 
ance with  the  usual  practice  in  United  States  cases  in 
the  courts,  without  requiring  an  affidavit  on  the  part  of 
the  Government. 

Rule  21. — One  continuance  only  shall  be  allowed  to 
either  party  on  account  of  absent  witnesses,  unless  the 
party  applying  for  a  further  continuance  shall  at  the 
same  time  apply  for  an  order  to  take  the  depositions  of 
the  alleged  absent  witnesses. 

Rule  22. — No  continuance  shall  be  granted  when  the 
opposite  party  shall  admit  that  the  witnesses  would,  if 


APPENDIX.  529 

present,  testify  to  the  statement  set  out  in  the  applica- 
tion for  continuance. 

DEPOSITIONS  ON  INTERROGATORIES. 

Rule  23. — Testimony  may  be  taken  by  deposition  in 
the  following  cases : 

1.  Where  the  witness  is  unable,  from  age,  infirmity, 
or  sickness,  or  shall  refuse,  to  attend  the  hearing  at  the 
local  land  office. 

2.  Where  the  witness  resides  more  than  fifty  miles 
from  the  place  of  trial,  computing  distance  by  the  usu- 
ally traveled  route. 

3.  Where  the  witness  resides  out  of  or  is  about  to 
leave  the  State  or  Territory,  or  is  absent  therefrom. 

4.  Where  from  any  cause  it  is  apprehended  that  the 
witness  may  be  unable  or  will  refuse  to  attend,  in  which 
case  the  deposition  will  be  used  only  in  event  that  the 
personal  attendance  of  the  witness  cannot  be  obtained. 

Rule  24. — The  party  desiring  to  take  a  deposition  un- 
der Rule  23  must  comply  with  the  following  regulations: 

1.  lie  must  make  affidavit  before  the  register  or  re- 
ceiver, setting  forth  one  or  more  of  the  above-named 
causes  for  taking  such  deposition,  and  that  the  witness 
is  material. 

2.  He  must  file  with  the  register  and  receiver  the  in- 
terrogatories to  be  propounded  to  the  witness. 

3.  He  must  state  the  name  and  residence  of  the  wit- 
ness. 

4.  lie  must  serve  a  copy  of  the  interrogatories  on  the 
opposing  party  or  his  attorney. 

Rule  25. — The  opposing  party  will  he  allowed  ten 
days  in  which  to  tile  cross-interrogatories. 

Adm.  Law — 34. 


530  ^MINISTRATIVE    LAW. 

Rule  26. — After  the  expiration  of  the  ten  days  allowed 
for  filing  cross-interrogatories,  a  commission  to  take  the 
deposition  shall  be  issued  by  the  register  and  receiver, 
which  commission  shall  be  accompanied  by  a  copy  of 
all  the  interrogatories  filed. 

Rule  27. — The  register  and  receiver  may  designate  any 
officer,  authorized  to  administer  oaths  within  the  county 
or  district  where  the  witness  resides,  to  take  such  deposi- 
tion. 

Rule  28. — It  is  the  duty  of  the  officer  before  whom 
the  deposition  is  taken  to  cause  the  interrogatories  ap- 
pended to  the  commission  to  be  written  out  and  the  an- 
swers thereto  to  be  inserted  immediately  underneath  the 
respective  questions,  and  the  whole,  when  completed,  is 
to  be  read  over  to  the  witness,  and  must  be  by  him  sub- 
scribed and  sworn  to  in  the  usual  manner  before  the 
witness  is  discharged. 

Rule  29. — The  officer  must  attach  his  certificate  to 
the  deposition,  stating  that  the  same  was  subscribed 
and  sworn  to  by  the  deponent  at  the  time  and  place  there- 
in mentioned. 

Rule  30. — The  deposition  and  certificate,  together 
with  the  commission  and  interrogatories,  must  then  be 
sealed  up,  the  title  of  the  cause  indorsed  on  the  en- 
velope, and  the  whole  returned  by  mail  or  express  to 
the  register  and  receiver. 

Rule  31. — Upon  receipt  of  the  package  at  the  local 
land  office,  the  date  when  the  same  is  opened  must  be 
indorsed  on  the  envelope  and  body  of  the  deposition  by 
the  local  land  officers. 

Rule  32. — If  the  officer  designated  to  take  the  deposi- 
tion has  no  official  seal,  a  proper  certificate  of  his  offi- 
cial character,  under  seal,  must  accompany  his  return. 


APPENDIX.  531 

Rule  33. — The  parties  in  any  case  may  stipulate  in 
writing  to  take  depositions  before  any  qualified  officer, 
and  in  any  manner, 

Rule  34. — All  stipulations  by  parties  or  counsel  must 
be  in  writing,  and  be  filed  with  the  register  and  re- 
ceiver. 

ORAL  TESTIMONY   BEFORE  OFFICERS  OTHER  THAN  REGISTERS 
AND    RECEIVERS. 

Rule  35. — In  the  discretion  of  registers  and  receivers 
testimony  may  be  taken  near  the  land  in  controversy  be- 
fore a  United  States  commissioner,  or  other  officer  au- 
thorized to  administer  oaths,  at  a  time  and  place  to 
be  fixed  Irv  them  and  stated  in  the  notice  of  hearing. 

2.  Officers  taking  testimony  under  the  foregoing  rule 
will  be  governed  by  the  rules  applicable  to  trials  before 
registers  and  receivers.  ( See  Knles  36  to  42,  inclu- 
sive i 

3.  Testimony  so  taken  must  be  certified  to.  sealedup, 
and  transmitted  by  mail  or  express  to  the  register  and 
receiver,  and  the  receipt  thereof  at  the  local  office  noted 
on  the  papers,  in  the  same  manner  as  provided  in  case  of 
depositions  by  Rules  lii)  to  32,  inclusive 

4.  On  the  day  set  for  hearing  at  the  local  office  the 
register  and  receiver  will  examine  the  testimony  taken 
by  the  officer  designated,  and  render  a  decision  thereOD 
in  the  same  manner  as  if  the  testimony  had  been  taken 
before  themselves.     (See  Rules  50  to  53,  inclusive.) 

5.  No  charge  for  examining  testimony  in  such  cases 
will  be  made  by  the  register  and  receiver. 

(J.  Officers  designated  to  take  testimony  under  (bis 
rule  will  be  allowed  to  charge  such  fees  as  are  properly 
authorized  bv  the  tariff  of  fees  existing  in  the  local  courts 


532  ADMINISTRATIVE    LAW. 

of  their  respective  districts,  to  be  taxed  in  the  same  or 
equivalent  manner  as  costs  are  taxed  by  registers  and  re- 
ceivers under  Rules  54  to  58,  inclusive. 

7.  When  an  officer  designated  to  take  testimony  un- 
der this  rule,  or  when  an  officer  designated  to  take  depo- 
sitions under  Eule  27,  cannot  act  on  the  day  fixed  for 
taking  the  testimony  or  deposition,  the  testimony  or  dep- 
osition, as  the  case  may  be,  will  be  deemed  properly 
taken  before  any  other  qualified  officer,  at  the  same 
place  and  time,  who  may  be  authorized  by  the  officer 
originally  designated,  or  by  agreement  of  parties,  to 
act  in  the  place  of  the  officer  first  named. 

TRIALS. 

Rule  3(3. — Upon  the  trial  of  a  cause,  the  register  and 
receiver  may  in  any  case,  and  should  in  all  cases  when 
necessary,  personally  direct  the  examination  of  the  wit- 
nesses, in  order  to  draw  from  them  all  the  facts  within 
their  knowledge  requisite  to  a  correct  conclusion  by  the 
officers  upon  any  point  connected  with  the  case. 

Rule  37. — The  register  and  receiver  will  be  careful 
to  reach,  if  possible,  the  exact  condition  and  status  of 
the  land  involved  by  any  contest,  and  will  ascertain  all 
the  facts  having  any  bearing  upon  the  rights  of  parties 
in  interest. 

Rule  38. — In  pre-emption  cases  they  will  particularly 
ascertain  the  nature,  extent,  and  value  of  alleged  im- 
provements ;  by  whom  made,  and  when ;  the  true  date  of 
the  settlement  of  persons  claiming;  the  steps  taken  to 
mark  and  secure  the  claim,  and  the  exact  status  of  the 
land  at  that  date  as  shown  upon  the  records  of  their 
office. 


APPENDIX. 


533 


Rule  39. — In  like  manner,  under  the  homestead  and 
other  laws,  the  conditions  affecting  the  inception  of  the 
alleged  right,  as  well  as  the  subsequent  acts  of  the  re- 
spective claimants,  must  be  fully  and  specifically  exam- 
ined. 

Rule  40. — Due  opportunity  will  be  allowed  opposing 
claimants  to  confront  and  cross-examine  the  witnesses 
introduced  by  either  party. 

Rule  41. — Xo  testimony  will  be  excluded  from  the 
record  by  the  register  and  receiver  on  the  ground  of 
any  objection  thereto ;  but  when  objection  is  made  to  tes- 
timony offered,  the  exceptions  will  be  noted,  and  the 
testimony,  with  the  exceptions,  will  come  up  with  the 
case  for  the  consideration  of  the  Commissioner.  Offi- 
cers taking  testimony  will,  however,  summarily  put  a 
stop  to  obviously  irrelevant  questioning. 

Rule  42. — Upon  the  day  originally  set  for  hearing, 
and  upon  any  day  to  which  the  trial  may  be  continued, 
the  testimony  of  all  the  witnesses  present  shall  be  taken 
and  reduced  to  writing.  When  testimony  is  taken  in 
shorthand,  the  stenographer's  notes  must  be  written  out 
and  the  written  testimony  then  and  there  subscribed  by 
the  witness  and  attested  by  the  officer  before  whom  the 
same  is  taken,  unless  the  parties  shall  by  proper  stipu- 
lation in  writing,  filed  with  the  record,  mutually  agree 
to  the  contrary,  in  which  event  the  transcribed  steno- 
graphic notes  shall  in  all  cases  be  accompanied  by  a  cer- 
tificate of  the  officer  or  officers  before  whom  the  testi- 
mony  was  taken  showing  that  the  witnesses  were  each 
duly  sworn  before  testifying,  and  also  by  the  affidavit 
of  the  stenographer  who  took  the  toslimony  in  short- 
hand that  the  purported  transcription  thereof  is  a  true 


534  ADMINISTRATIVE    LAW. 

and  correct  statement  of  the  testimony  actually  given 
by  the  witnesses  after  being*  duly  sworn  at  the  hearing. 

APPEALS. 

Eule  43. — Appeals  from  the  final  action  or  decisions 
of  registers  and  receivers  lie  in  every  case  to  the  Com- 
missioner of  the  General  Land  Office.  (Revised  Stat- 
utes, sections  453,  2478.) 

In  cases  dismissed  for  want  of  prosecution  the  regis- 
ter and  receiver  will  by  registered  letter  notify  the  par- 
ties in  interest  of  the  action  taken,  and  that  unless  with- 
in thirty  dajrs  a  motion  for  reinstatement  stiall  be  made, 
the  default  of  the  plaintiff  will  be  final,  and  that  no  ap- 
peal will  be  allowed;  which  notice  shall  be  given  as  pro- 
vided in  circular  of  October  28,  1886  (5  L.  D.,  204). 

If  such  motion  for  reinstatement  be  made  within  the 
time  limited,  the  local  officers  shall  take  action  there- 
on, and  grant  or  deny  it,  as  they  deem  proper.  If  grant- 
ed, no  appeal  shall  lie.  If  overruled,  the  plaintiff  shall 
have  the  right  of  appeal,  the  time  for  which  shall  be 
thirty  days,  and  run  from  the  date  of  written  notice  to 
the   plaintiff. 

Rule  44. — After  hearing  in  a  contest  case  has  been 
had  and  closed,  the  register  and  receiver  will,  in  writing, 
notify  the  parties  in  interest  of  the  conclusions  to  which 
they  have  arrived,  and  that  thirty  days  are  allowed  for 
appe.il  from  their  decision  to  the  <  'mnmissioner,  the 
notice  to  be  served  personally  or  by  registered  letter, 
as  provided  in  Rule  17. 

Rule  45. — The  appeal  must  be  in  writing  or  in  print, 
and  should  set  forth  in  brief  and  clear  terms  the  specific 
points  of  exception  to  the  ruling  appealed  from. 


APPENDIX.  535 

Rule  4G. — Notice  of  appeal  and  copy  of  specification 
of  errors  shall  be  served  on  appellee  within  the  time 
allowed  for  appeal,  and  appellee  shall  be  allowed  ten 
days  for  reply  before  transmittal  of  the  record  to  the 
General  Land  Office. 

Rule  47. — No  appeal  from  the  action  or  decisions  of 
the  register  and  receiver  will  Ik1  received  at  the  General 
Land  Office  unless  forwarded  through  the  local  officers. 

Rule  48. — In  case  of  a  failure  to  appeal  from  the 
decision  of  the  local  officers,  their  decision  will  be  con- 
sidered final  as  to  the  facts  in  the  case  and  will  be  dis- 
turbed by  the  Commissioner  only  as  follows : 

1.  Where  fraud  or  gross  irregularity  is  suggested  on 
the  face  of  the  papers. 

2.  Where  the  decision  is  contrary  to  existing  laws  or 
regulations. 

3.  In  event  of  disagreeing  decisions  by  the  local  offi- 
cers. 

4.  Where  it  is  not  shown  that  the  party  against  whom 
the  decision  was  rendered  was  duly  notified  of  the  deci- 
sion and  of  his  right  of  appeal. 

Rule  49. — In  any  of  the  foregoing  cases  the  Commis- 
sioner will  reverse  or  modify  the  decision  of  the  local 
officers  or  remand  the  case,  at  his  discretion. 

Rule  50. — All  documents  once  received  by  the  local 
officers  must  be  kept  on  file  with  the  cases,  and  the  dale 
of  filing  must  he  noted  thereon;  and  no  papers  will  he 
allowed  under  any  circumstances  to  he  removed  from 
the  files  oi-  taken  from  the  custody  of  1  he  register  and  re- 
ceiver, hut  access  to  the  same,  under  proper  rules,  so 
as  not  to  interfere  with  necessary  public  business,  will 
be  permitted  to  the  parties  in  interest,  or  (heir  attor- 
neys, under  the  supervision  of  those  officers. 


536  ADMINISTRATIVE    LAW. 

REPORTS  AND  OPINIONS. 

Rule  51. — Upon  the  termination  of  a  contest,  the  reg- 
ister and  receiver  will  render  a  joint  report  and  opinion 
in  the  case,  making  full  and  specific  reference  to  the 
postings  and  annotations  upon  their  records. 

Rule  52. — The  register  and  receiver  will  promptly 
forward  their  report,  together  with  the  testimony  and 
all  the  papers  in  the  case,  to  the  Commissioner  of  the 
General  Land  Office,  with  a  brief  letter  of  transmittal, 
describing  the  case  by  its  title,  the  nature  of  the  con- 
test,  and  the  tract  involved. 

Rule  53. — The  local  officers  will  thereafter  take  no 
further  action  affecting  the  disposal  of  the  land  in  con- 
test until  instructed  by  the  Commissioner. 

In  all  cases,  however,  where  a  contest  has  been  brought 
against  any  entry  or  filing  on  the  public  lands,  and  trial 
has  taken  place,  the  entryman  may,  if  he  so  desires,  in 
accordance  with  the  provisions  of  the  law  under  which 
he  claims  and  the  rules  of  the  Department,  submit  final 
proof  and  complete  the  same,  with  the  exception  of  the 
payment,  and  final  certificate  will  issue,  without  any 
further  action  on  the  part  of  the  entryman,  except  the 
furnishing  of  a  nonalienation  affidavit  by  the  entryman, 
or,  in  case  of  his  death,  by  his  legal  representatives. 

In  such  cases  the  party  making  the  proof,  at  the  time 
of  submitting  the  same,  will  be  required  to  pay  the  fees 
for  reducing  the  testimony  to  writing. 

TAXATION   OF   COSTS. 

Rile  54. — Parties  contesting  pre-emption,  homestead, 
or  timber-culture  entries  and  claiming  preference  rights 
of  entry  under  the  second  section  of  the  act  of  May  14, 
1880  (21  Stat.,  140),  must  pay  the  costs  of  contest. 


APPENDIX.  537 

Rule  55. — In  other  contested  cases  each  party  must 
pay  the  costs  of  taking  testimony  upon  his  own  direct 
and  cross-examination. 

Rule  56. — The  accumulation  of  excessive  costs  under 
Rule  54  will  not  be  permitted;  but  when  the  officer  tak- 
ing testimony  shall  rule  that  a  course  of  examination  is 
irrelevant  and  checks  the  same,  under  Rule  41,  he  may, 
nevertheless,  in  his  discretion,  allow  the  same  to  pro- 
ceed at  the  sole  cost  of  the  party  making  such  exam- 
ination. This  rule  will  apply  also  to  cross-examination 
in  contests  covered  by  the  provisions  of  Rule  55. 

Rule  57. — Where  parties  contesting  pre-emption, 
homestead,  or  timber-culture  entries  establish  their 
right  of  entry  under  the  pre-emption  or  homestead  laws 
of  the  land  in  contest  by  virtue  of  actual  settlement  and 
improvement,  without  reference  to  the  act  of  May  14, 
1880,  the  cost  of  contest  will  be  adjudged  under  Rule  55. 

Rule  58. — Registers  and  receivers  will  apportion  the 
cost  of  contest  in  accordance  with  the  foregoing  rules, 
and  may  require  the  party  liable  thereto  to  give  security 
in  advance  of  trial,  by  deposit  or  otherwise,  in  a  reason- 
able sum  or  sums,  for  payment  of  the  cost  of  transcribing 
the  testimony. 

Rule  5!). — The  cost  <>f  contest  chargeable  by  registers 
and  receivers  are  the  legal  fees  for  reducing  testimony 
to  writing.  No  other  contesl  fees  or  costs  will  be  al- 
lowed to  or  charged  by  l  hose  officers  directly  or  indi- 
rectly. 

Rule  (50. — Contestants  nmsi  give  their  own  notices 
and  pay  the  expenses  thereof. 

Rule  01. — Upon  the  termination  of  a  trial,  any  excess 
in  the  sum  deposited  as  security  for  the  costs  of  Iran- 


538  ADMINISTRATIVE    LAW. 

scribing  the  testimony  will  be  returned  to  the  proper 
party. 

Kule  62. — When  hearings  are  ordered  by  the  Commis- 
sioner or  by  the  Secretary  of  the  Interior,  upon  the  dis- 
covery of  reasons  for  suspension  in  the  usual  course  of 
examination  of  entries,  the  preliminary  costs  will  be 
provided  from  the  contingent  fund  for  the  expenses  of 
local  land  offices. 

Rule  63. — The  preliminary  costs  provided  for  by  the 
preceding  section  will  be  collected  by  the  register  and 
receiver  when  the  parties  are  brought  before  them  in 
obedience  to  the  order  of  hearing. 

Rule  64. — The  register  and  receiver  will  then  require 
proper  provision  to  be  made  for  such  further  notifica- 
tion as  may  become  necessary  in  the  usual  progress  of 
the  case  to  final  decision. 

Rule  65. — The  register  and  receiver  will  append  to 
their  report  in  each  case  a  statement  of  costs  and  the 
amount  actually  paid  by  each  of  the  contestants,  and 
also  a  statement  of  the  amount  deposited  to  secure  the 
payment  of  the  '-osts,  how  said  sum  was  apportioned, 
and  the  amount  returned,  if  any,  and  to  whom. 

APPEALS  FROM   DECISIONS   REJECTING  APPLICATIONS  TO   EN- 
TER PUBLIC  LANDS. 

Rule  66. — For  the  purpose  of  enabling  appeals  to  be 
taken  from  the  rulings  or  action  of  the  local  officers  rela- 
tive to  applications  to  file  upon,  enter,  or  locate  the  pub- 
lic lands  the  following  rules  will  be  observed : 

1.  The  register  and  receiver  will  indorse  upon  every 
rejected  application  the  date  when  presented  and  their 
reasons  for  rejecting  it. 


APPENDIX.  539 

2.  They  will  promptly  advise  the  party  in  interest  of 
their  action  and  of  his  right  of  appeal  to  the  Commis- 
sioner. 

3.  They  will  note  upon  their  records  a  memorandum 
of  the  transaction. 

Rule  67. — The  party  aggrieved  will  be  allowed  thirty 
days  from  receipt  of  notice  in  which  to  file  his  appeal 
in  the  local  land  office.  Where  the  notice  is  sent  by  mail, 
five  days  additional  will  be  allowed  for  the  transmis- 
sion of  notice  and  five  for  the  return  of  the  appeal. 

Rule  68. — The  register  and  receiver  will  promptly 
forward  the  appeal  to  the  General  Land  Office,  together 
with  a  full  report  upon  the  case. 

Rule  69.— This  report  should  recite  all  the  facts  and 
the  proceedings  had,  and  must  embrace  the  following 
particulars: 

1.  A  statement  of  the  application  and  rejection,  with 
the  reasons  for  the  rejection. 

2.  A  description  of  the  tract  involved  and  a  statement 
of  its  status,  as  shown  by  the  records  of  the  local  land 
office. 

3.  References  to  all  entries,  filings,  annotations,  mem- 
oranda, and  correspondence  shown  by  the  record  relat- 
ing to  said  tract  and  to  the  proceedings  had. 

Rule  TO. — Rules  43  to  48,  inclusive,  and  Rule  !>::  are 
applicable  to  all  appeals  from  decisions  of  registers  and 
receivers. 

II.  PROCEEDINGS  BEFORE  SURVEYORS-GENERAL. 

Rule  71. — The  proceedings  in  hearings  and  contests 
before  surveyors-general  shall,  as  to  no!  ices,  depositions, 
and  other  matters,  be  governed  as  nearly  ;is  may  be  by 
the  rules  prescribed  for  proceedings  before  registers  and 
receivers,  unless  otherwise  provided  by  law. 


540  ADMINISTRATIVE    LAW. 

III.      PROCEEDINGS     BEFORE    THE    COMMISSIONER     OF    THE 

GENERAL   LAND  OFFICE  AND   SECRETARY 

OF   THE    INTERIOR. 

EXAMINATION  AND  ARGUMENT. 

Rule  72. — When  a  contest  has  been  closed  before  the 
local  land  officers  and  their  report  forwarded  to  the  Gen- 
eral Land  Office,  no  additional  evidence  will  be  admit- 
ted in  the  case,  unless  offered  under  stipulation  of  the 
parties  to  the  record,  except  where  such  evidence  is  pre- 
sented as  the  basis  of  a  motion  for  a  new  trial  or  in  sup- 
port of  a  mineral  application  or  protest;  but  this  rule 
will  not  prevent  the  Commissioner,  in  the  exercise  of  his 
discretion,  from  ordering  further  investigation  when  nec- 
essary. 

Rule  73. — After  the  Commissioner  shall  have  received 
a  record  of  testimony  in  a  contested  case,  thirty  days 
will  be  allowed  to  expire  before  any  action  thereon  is 
taken,  unless,  in  the  judgment  of  the  Commissioner,  pub- 
lic policy  or  private  necessity  shall  demand  summary 
action,  in  which  case  he  will  proceed  at  his  discretion, 
first  notifying  the  attorneys  of  record  of  his  proposed 
action. 

Rule  74. — When  a  case  is  pending  on  appeal  from  the 
decision  of  the  register  and  receiver  or  surveyor-general, 
and  argument  is  not  filed  before  the  same  is  reached  in 
its  order  for  examination,  the  argument  will  be  consid- 
ered closed,  and  thereafter  no  further  arguments  or 
motions  of  any  kind  will  be  entertained  except  upon  writ- 
ten stipulation  duly  filed  or  good  cause  shown  to  the 
Commissioner. 

Rule  75. — If  before  decision  by  the  Commissioner 
either  party  should  desire  to  discuss  a  case  orally,  rea- 


APPENDIX.  541 

sonable  opportunity  therefor  will  be  given  in  the  discre- 
tion of  the  Commissioner,  but  only  at  a  time  to  be  fixed 
by  him  upon  notice  to  the  opposing  counsel,  stating  time 
and  specific  points  upon  which  discussion  is  desired ;  and 
except  as  herein  provided,  no  oral  hearings  or  sugges- 
tions will  be  allowed. 

REHEARING  AND  REVIEW. 

Rule  76. — Motions  for  rehearing  before  registers  and 
receivers,  or  for  review  or  reconsideration  of  the  deci- 
sions of  the  Commissioner  or  Secretary,  will  be  allowed, 
in  accordance  with  legal  principles  applicable  to  motions 
for  new  trials  at  law,  after  due  notice  to  the  opposing 
party. 

Rule  77. — Motions  for  rehearing  and  review,  except  as 
provided  in  Rule  114,  must  be  filed  in  the  office  wherein 
the  decision  to  be  affected  by  such  rehearing  or  review 
was  made  or  in  the  local  land  office,  for  transmittal  to 
the  General  Land  Office;  and,  except  when  based  upo» 
newly  discovered  evidence,  must  be  filed  within  thirty 
days  from  notice  of  such  decision. 

Rule  78. — Motions  for  rehearing  and  review  must  be 
accompanied  by  an  affidavit  of  the  party,  or  his  attor- 
ney, that  the  motion  is  made  in  good  faith,  and  not  for 
the  purpose  of  delay. 

Rule  79. — The  time  between  the  filing  of  a  motion 
for  rehearing  or  review  and  the  notice  of  the  decision 
upon  such  motion  shall  be  excluded  in  computing  the 
time  allowed  for  appeal. 

Rule  80. — No  officer  shall  entertain  a  motion  in  a 
case  after  an  appeal  from  his  decision  has  been  taken. 


542.  ADMINISTRATIVE    LAW. 

APPEALS    FROM    THE    COMMISSIONER    TO    THE    SECRETARY. 

Rule  81. — No  appeal  shall  be  had  from  the  action  of 
the  Commissioner  of  the  General  Land  Office  affirming 
the  decision  of  the  local  officers  in  any  case  where  the 
party  or  parties  adversely  affected  thereby  shall  have 
failed,  after  due  notice,  to  appeal  from  such  decision  of 
said  local  officers. 

Subject  to  this  provision,  an  appeal  may  be  taken  from 
the  decision  of  the  Commissioner  of  the  General  Land 
Office  to  the  Secretary  of  the  Interior  upon  any  ques- 
tion relating  to  the  disposal  of  the  public  lands  and  to 
private  land  claims,  except  in  case  of  interlocutory  or- 
ders and  decisions  and  orders  for  hearing  or  other  mat- 
ter resting  in  the  discretion  of  the  Commissioner.  De- 
cisions and  orders  forming  the  above  exception  will  be 
noted  in  the  record,  and  will  be  considered  by  the  Sec- 
retary on  review  in  case  an  appeal  upon  the  merits  be 
finally  allowed. 

Rule  82. — When  the  Commissioner  considers  an  ap- 
peal defective,  he  will  notify  the  party  of  the  defect,  and 
if  not  amended  within  fifteen  days  from  the  date  of  the 
service  of  such  notice  the  appeal  may  be  dismissed  by 
the  Secretary  of  the  Interior  and  the  case  closed. 

Rule  83. — In  proceedings  before  the  Commissioner  in 
which  he  shall  formally  decide  that  a  party  has  no  right 
of  appeal  to  the  Secretary,  the  party  against  whom  such 
decision  is  rendered  may  apply  to  the  Secretary  for  an 
order  directing  the  Commissioner  to  certify  said  pro- 
ceedings to  the  Secretary  and  to  suspend  further  action 
until  the  Secretary  shall  pass  upon  the  same. 

Rule  84. — Applications  to  the  Secretary  under  the 
preceding  rule  shall  be  made  in  writing,  under  oath, 
and  shall  fully  and  specifically  set  forth  the  grounds 
upon  which  the  application  is  made. 


APPENDIX.  543 

Rule  85. — When  the  Commissioner  shall  formally  de- 
cide against  the  right  of  an  appeal,  he  shall  suspend  ac- 
tion on  the  case  at  issue  for  twenty  days  from  service 
of  notice  of  his  decision,  to  enable  the  party  against 
whom  the  decision  is  rendered  to  apply  to  the  Secretary 
for  an  order,  in  accordance  with  Rules  83  and  84. 

Rule  86. — Notice  of  an  appeal  from  the  Commission- 
er's decision  must  be  filed  in  the  General  Land  Office 
and  served  on  the  appellee  or  his  counsel  within  sixty 
days  from  the  date  of  the  service  of  notice  of  such  deci- 
sion. 

Rule  87. — When  notice  of  the  decision  is  given 
through  the  mails  by  the  register  and  receiver  or  survey- 
or-general, five  days  additional  will  be  allowed  by  those 
officers  for  the  transmission  of  the  letter  and  five  days 
for  the  return  of  the  appeal  through  the  same  chan- 
nel before  reporting  to  the  General  Land  Office. 

Rule  88. — Within  the  time  allowed  for  giving  notice 
of  appeal  the  appellant  shall  also  file  in  the  General 
Land  Office  a  specification  of  errors,  which  specification 
shall  clearly  and  concisely  designate  the  errors  of  which 
he  complains. 

Rule  89. — He  may  also,  within  the  same  time,  file  a 
written  argument,  with  citation  of  authorities,  in  sup- 
port of  his  appeal. 

Rule  90. — A  failure  to  file  a  specification  of  errors 
within  the  time  required  will  be  treated  as  a  waiver  of 
the  right  of  appeal,  and  the  case  will  be  considered 
closed. 

Rule  91. — The  appellee  may  file  a  written  argument 
in  his  behalf  within  thirty  days  from  service  of  the  ar- 
gument of  the  appellant,  when  the  latter  files  an  argu- 
ment within  the  time  allotted  by   Rule  89;  otherwise, 


544  ADMINISTRATIVE    LAW. 

within  thirty  days  from  the  expiration  of  the  time  so 
allotted  to  appellant. 

This  rule  (91)  as  thus  amended  will  take  effect  Sep- 
tember 1,  1901. 

Rule  92. — The  appellant  shall  be  allowed  thirty  days 
from  service  of  argument  of  appellee  in  which  to  file 
argument  strictly  in  reply,  and  no  other  or  further  ar- 
guments or  motions  of  any  kind  shall  be  filed  without 
permission  of  the  Commissioner  or  Secretary  and  notice 
to  the  opposite  party. 

Rule  93. — A  copy  of  the  notice  of  appeal,  specifica- 
tion of  errors,  and  all  arguments  of  either  party  shall 
be  served  on  the  opposite  party  within  the  time  allowed 
for  filing  the  same. 

Rule  94. — Such  service  shall  be  made  personally  or 
by  registered  letter. 

Rule  95. — Proof  of  personal  service  shall  be  the  writ- 
ten acknowledgment  of  the  party  served  or  the  affidavit 
of  the  person  making  the  service  attached  to  the  papers 
served,  and  stating  time,  place,  and  manner  of  service. 

Rule  96. — Proof  of  service  by  registered  letter  shall 
be  the  affidavit  of  the  person  mailing  the  letter,  attached 
to  a  copy  of  the  post-office  receipt. 

Rule  97. — Fifteen  days,  exclusive  of  the  day  of  mail- 
ing, will  be  allowed  for  the  transmission  of  notices  and 
papers  by  mail,  except  in  case  of  notice  to  resident  attor- 
neys, when  one  day  will  be  allowed. 

Rule  98. — Notice  of  interlocutory  motions  and  pro- 
ceedings before  the  Commissioner  and  Secretary  shall 
be  served  personally  or  by  registered  letter,  and  service 
proved  as  provided  in  Rules  91  and  95. 

Rule  99. — Xo  motion  affecting  the  merits  of  the  case 


APPENDIX.  545 

or  the  regular  order  of  proceedings  will  be  entertained 
except  on  due  proof  of  service  of  notice. 

Rule  100. — Ex  parte  eases  and  eases  in  which  the  ad- 
verse party  dees  not  appear  will  be  governed  by  the  fore- 
going rules  as  to  notices  of  decisions,  time  for  appeal. 
and  filing  of  exceptions  and  arguments,  as  far  as  applica- 
ble. In  such  cases,  however,  the  right  to  file  additional 
evidence  at  any  stage  of  the  proceedings  to  cure  defects 
in  the  proof  or  record  will  be  allowed. 

Rule  101. — -No  person  hereafter  appearing  as  a  part'y 
or  attorney  in  any  case  shall  be  entitled  to  a  ool  ice  of  the 
proceedings  who  does  not  at  the  time  of  his  appearance 
file  in  the  office  in  which  the  case  is  pending  a  statemeni 
in  writing,  giving  his  name  and  post-office  address  and 
the  name  of  the  party  whom  he  represents;  nor  shall 
any  person  who  ha1^  heretofore  appeared  in  a  ease  be 
entitled  to  a  notice  unless  within  fifteen  days  after  be- 
ing requested  to  file  such  statement  he  shall  comply  with 
said  requirement. 

Rule  102. — No  person  not  a  party  to  the  record  shall 
intervene  in  a  case  without  firs)  disclosing  on  oath  the 
nature  of  his  interest. 

Rule  103. — When  the  Commissioner  makes  an  order 
or  decision  affecting  the  merits  of  ;i  case  or  l  he  regular 
order  of  proceedings  therein,  he  will  cause  notice  to  be 
given  to  each  party  in  interesi  whose  address  is  known. 

ATTORNEYS. 

RULE  104. — In  all  c;ises,  contested  or  ex  /><irl<\  where 
the  parties  in  interesi  are  represented  by  attorneys,  such 
attorneys  will  he  recognized  as  fully  controlling  the 
cases  of  their  respeel  ive  clients. 

Arlm.  Law — 35. 


546  ADMINISTRATIVE    LAW. 

Rule  105. — All  notices  will  be  served  upon  the  attor- 
neys of  record. 

Rule  106. — Notice  to  one  attorney  in  a  case  shall  con- 
stitute notice  to  all  counsel  appearing  for  the  party  rep- 
resented by  him,  and  notice  to  the  attorney  will  be 
deemed  notice  to  the  party  in  interest. 

Rule  107. — All  attorneys  practicing  before  the  Gen- 
eral Land  Office  and  Department  of  the  Interior  must 
first  file  the  oath  of  office  prescribed  by  section  3178, 
linked  States  Revised  Statutes. 

Rule  108. — In  the  examination  of  any  case,  whether 
contested  or  ex  parte,  the  attorneys  employed  in  said 
case,  when  in  good  standing  in  the  Department,  for  the 
preparation  of  arguments,  will  be  allowed  full  oppor- 
tunity to  consult  the  records  of  the  case,  the  abstracts, 
field  notes,  and  tract  books,  and  the  correspondence  of 
the  General  Land  Office  or  of  the  Department  not 
deemed  privileged  and  confidential;  and  whenever,  in 
the  judgment  of  the  Commissioner,  it  would  not  jeopard- 
ize any  public  or  official  interest,  may  make  verbal  in- 
quiries of  chiefs  of  divisions  at  their  respective  desks  in 
respect  to  the  papers  or  status  of  said  case;  but  such 
inquiries  will  not  be  made  to  said  chiefs  or  other  clerks 
of  division  except  upon  consent  of  the  Commissioner, 
Assistant  Commissioner,  or  chief  clerk,  and  will  be  re- 
stricted to  hours  between  11  a.  m.  and  2  p.  m. 

Rule  109. — Any  attorney  detected  in  any  abuse  of  the 
above  privileges,  or  of  gross  misconduct,  upon  satisfac- 
tory proof  thereof,  after  due  notice  and  hearing,  shall 
be  prohibited  from  further  practicing  before  the  Depart- 
ment. 

Rule  110. — Should  either  party  desire  to  discuss  a 
case  orally  before  the  Secretary,  opportunity  will  be 


APPENDIX.  547 

afforded  at  the  discretion  of  the  Department,  but  only 
at  a  time  specified  by  the  Secretary  or  fixed  by  stipula- 
tion of  the  parties,  with  the  consent  of  the  Secretary,  and 
in  the  absence  of  such  stipulation  or  written  notice  to 
opposing  counsel,  with  like  consent,  specifying  the  time 
when  argument  will  be  heard. 

Rule  111. — The  examination  of  cases  on  appeal  to 
the  Commissioner  or  Secretary  will  be  facilitated  by 
filing  in  printed  form  such  arguments  as  it  is  desired 
to  have  considered. 

DECISIONS. 

Rule  112. — Decisions  of  the  Commissioner  not  ap- 
pealed from  within  the  period  prescribed  become  final, 
and  the  case  will  be  regularly  closed. 

Rule  113. — The  decision  of  the  Secretary,  so  far  as 
respects  the  action  of  the  Executive,  is  final. 

Rule  114. — Motions  for  review  or  rehearing  before 
the  Secretary  must  be  tiled  with  the  Commissioner  of 
the  General  Land  Office  within  thirty  days  after  notice 
of  the  decision  complained  of,  and  will  act  as  a  super- 
sedeas of  the  decision  until  otherwise  directed  by  the 
Secretary. 

Any  such  motion  must  state  concisely  and  specifically 
the  grounds  for  review  or  rehearing,  one  or  both  as  the 
case  may  be,  upon  which  it  is  based,  and  may  be  ac- 
companied by  an  argument  in  support  thereof. 

Upon  its  receipt,  the  Commissioner  of  the  General 
Land  Office  will  forward  the  motion  immediately  to  this 
Department,  where  it  will  be  treated  as  "special."  If 
the  motion  does  not  show  proper  grounds  for  review  or 
rehearing,  it  will  be  denied  and  sent  to  the  files  of  the 
General  Land  Office,  whereupon  the  Commissioner  will 


548  ADMINISTRATIVE    LAW. 

remove  the  suspension  and  proceed  to  execute  the  de- 
cision before  rendered.  But  if,  upon  examination,  prop- 
er grounds  are  shown,  the  motion  will  be  entertained  and 
the  moving  party  notified,  whereupon  he  will  be  allowed 
thirty  days  within  which  to  serve  the  same,  together  with 
all  argument  in  support  thereof,  on  the  opposite  party, 
who  will  be  allowed  thirty  days  thereafter  in  which  to 
file  and  serve  an  answer,  but  consideration  of  the  motion 
will  not  be  deferred  for  further  argument. 

Rule  115. — None  of  these  rules  shall  be  construed  to 
deprive  the  Secretary  of  the  Interior  of  either  the  di- 
rectory or  supervisory  power  conferred  upon  him  by  law. 

IV.      REGULATIONS     .GOVERNING      THE       RECOGNITION       OF 

AGENTS  AND  ATTORNEYS   BEFORE    DISTRICT 

LAND    OFFICERS. 

1.  An  attorney  at  law  who  desires  to  represent  claim- 
ants or  contestants  before  a  district  land  office  must 
file  a  certificate,  under  the  seal  of  a  United  States,  State, 
or  Territorial  court  for  the  judicial  district  in  which  he 
resides  or  the  local  land  office  is  situated,  that  he  is  an 
attorney  in  good  standing. 

2.  Any  person  (not  an  attorney  at  law)  who  desires 
to  appear  as  an  agent  for  claimants  or  contestants  be- 
fore a  district  land  office  must  file  a  certificate  from  a 
judge  of  a  United  States  court,  or  of  a  State  or  Terri- 
torial court  having  common-law  jurisdiction,  except  pro- 
bate courts,  in  the  county  wherein  he  resides  or  the  local 
office  is  situated,  duly  authenticated  under  the  seal  of 
the  court,  that  such  person  is  of  good  moral  character 
and  in  good  repute,  possessed  of  the  necessary  qualifi- 
cations to  enabl'e  him  to  render  clients  valuable  serv- 
ice, and  otherwise  competent  to  advise  and  assist  them 
in  the  presentation  of  their  claims  or  contests. 


APPENDIX.  549 

3.  The  oath  of  allegiance  required  by  section  3478  of 
the  United  States  Kevised  Statutes  must  also  be  filed 
by  applicants.  In  case  of  a  firm,  the  names  of  the  in- 
dividuals composing  the  firm  must  be  given,  and  a  cer- 
tificate and  oath  as  to  each  member  of  the  firm  will  be 
required. 

4.  An  applicant  to  practice  under  the  above  regula- 
tions must  address  a  letter  to  the  register  and  receiver, 
inclosing  the  certificate  and  oath  above  required,  in 
which  letter  his  full  name  and  post-office  address  must 
be  given.  He  must  state  whether  or  not  he  has  ever 
been  recognized  as  an  attorney  or  agent  before  this  De- 
partment or  any  bureau  thereof,  or  any  of  the  local  land 
offices,  and,  if  so,  whether  he  has  ever  been  suspended 
or  disbarred  from  practice.  He  must  also  state  wheth- 
er he  holds  any  office  under  the  Government  of  the  Unit- 
ed States. 

After  an  application  to  practice  has  been  filed  in  due 
form,  the  register  and  receiver  will  recognize  the  ap- 
plicant as  an  attorney  or  agent,  as  the  case  may  be,  un- 
less they  have  good  reason  to  believe  that  the  person 
making  the  application  is  unfit  to  practice  before  their 
offices,  or  unless  otherwise  instructed  by  the  Commis- 
sioner or  Secretary. 

Registers  and  receivers  must  keep  a  record  of  the 
names  and  residences  of  all  attorneys  and  agents  recog- 
nized as  entitled  to  represent  clients  in  their  several 
offices. 

Every  attorney  must,  either  at  the  time  of  entering 
his  appearance  for  a  claimant  or  contestant  or  within 
thirty  days  thereafter,  file  the  written  authority  h>v  such 
appearance,  signed  by  said  claimant  or  contestant,  and 
setting  forth  his  or  her  presenl   residence,  occupation, 


550  ADMINISTRATIVE    LAW. 

and  post-office  address.  Upon  a  failure  to  file  such  writ- 
ten authority  within  the  time  limited,  it  is  the  duty  of 
the  register  and  receiver  to  no  longer  recognize  him  as 
attorney  in  the  case. 

An  attorney  in  fact  will  be  required  to  file  a  power 
of  attorney  of  his  principal,  duty  executed,  specifying 
the  power  granted  and  stating  the  party's  present  resi- 
dence, occupation,  and  post-office  address. 

When  the  appearance  is  for  a  person  other  than  a 
claimant  or  contestant  of  record,  the  attorney  or  agent 
will  he  required  to  state  the  name  of  the  person  for  whom 
he  appears,  his  post-office  address,  the  character  and  ex- 
tent of  his  interest  in  the  matter  involved,  and  when  and 
from  what  source  it  was  acquired.  Authorizations  and 
powers  signed  or  executed  in  blank  will  not  be  recog- 
nized. 

If  any  attorney  or  agent  shall  knowingly  commit  any 
of  the  following  acts,  viz. :  Kepresent  fictitious  or  fraud- 
ulent entrymen;  prosecute  collusive  contests;  speculate 
in  relinquishments  of  entries;  assist  in  procuring  illegal 
or  fraudulent  entries  or  filings ;  represent  himself  as  the 
attorney  or  agent  of  entrymen  when  he  is  only  attorney 
or  agent  for  a  transferee  or  mortgagee ;  conceal  the  name 
or  interest  of  his  client ;  give  pernicious  advice  to  parties 
seeking  to  obtain  title  to  public  land;  attempt  to  pre- 
vent a  qualified  person  from  settling  upon,  entering,  or 
filing  for  a  tract  of  public  land  properly  subject  to  such 
entry  or  filing,  or  be  otherwise  guilty  of  dishonest  or  un- 
professional conduct,  or  who,  in  connection  with  busi- 
ness pending  in  local  land  offices  or  in  this  Department, 
shall  knowingly  employ  as  subagent,  clerk,  or  corre- 
spondent a  person  who  has  been  guilty  of  any  one  of  these 
acts,  or  who  has  been  prohibited  from  practicing  before 


APPENDIX.  551 

the  register  and  receiver  or  this  Department,  it  will  be 
sufficient  reason  for  his  disbarment  from  practice,  and 
registers  and  receivers  are  authorized  to  refuse  to  fur- 
ther recognize  any  person  as  agent  or  attorney  who  shall 
be  known  to  them  or  be  proven  before  them  to  be  guilty 
of  improper  and  unprofessional  conduct  as  above  stated. 

An  attorney  or  agent  who  has  been  admitted  to  prac- 
tice in  any  particular  land  district  may  be  enrolled  and 
authorized  to  practice  in  any  other  district  upon  filing 
with  the  register  and  receiver  of  such  district  a  cer- 
tificate of  the  register  or  receiver  before  whom  he  was  ad- 
mitted to  practice  that  lie  is  an  attorney  or  agent  in  good 
standing. 

Any  unprofessional  conduct  on  the  part  of  an  attor- 
ney or  agent  should  be  reported  to  the  Commissioner 
at  once,  together  with  the  action  of  the  local  land  officers 
in  the  premises. 

Appeals  from  the  action  of  the  register  and  receiver 
in  refusing  to  admit  to  practice  or  in  refusing  to  further 
recognize  an  agent  or  attorney  will  lie  to  the  Commis- 
sioner and  Secretary,  as  in  other  appealable  cases,  i  <  Jir- 
cular  approved  March  10,  1887,  5  L.  D.,  508.  i 

V.  LAWS  AND  REGULATIONS  GOVERNING  THE  RECOGNI- 
TION OF  AGENTS,  ATTORNEYS,  AND  OTHER  PERSONS 
TO  REPRESENT  CLAIMANTS  BEFORE  THE  DEPART- 
MENT OF  THE  INTERIOR  AND  THE  BUREAUS  THEREOF. 

LAWS. 

The  following  statutes  relate  to  the  recognition  of  at- 
torneys and  agents  for  claimants  before  this  Depart- 
ment : 

"That  the  Secretary  of  the  Interior  may  prescribe 
rules    and    regulations    governing    the    recognition    of 


552  ADMINISTRATIVE    LAW. 

aucnts,  attorneys,  or  other  persons  representing  claim- 
ants before  his  Department,  and  may  require  of  such 
persons,  agents,  or  attorneys,  before  being  recognized  as 
representatives  of  claimants,  that  they  shall  show  that 
they  are  of  good  moral  character  and  in  good  repute,  pos- 
sessed of  the  necessary  qualifications  to  enable  them  to 
render  such  claimants  valuable  service,  and  otherwise 
competent  to  advise  and  assist  such  claimants  in  the  pres- 
entation of  their  claims ;  and  such  Secretary  may,  after 
notice  and  opportunity  for  a  hearing,  suspend  or  exclude 
from  further  practice  before  his  Department  any  such 
person,  agent,  or  attorney  shown  to  be  incompetent,  dis- 
reputable, or  who  refuses  to  comply  with  the  said  rules 
and  regulations,  or  who  shall  with  intent  to  defraud  in 
any  manner  deceive,  mislead,  or  threaten  any  claimant 
or  prospective  claimant  by  word,  circular,  letter  or  by 
advertisement."  (Act  July  1,  1884,  sec.  5;  23  Stats., 
101.1 

"Every  officer  of  the  United  States,  or  person  holding 
any  place  of  trust  or  profit,  or  discharging  any  official 
function  under?  or  in  connection  with,  any  Executive  De- 
partment of  the  Government  of  the  United  States,  or  un- 
der the  Senate  or  House  of  Representatives  of  the  Unit- 
ed States,  who  acts  as  an  agent  or  attorney  for  prosecut- 
ing any  claim  against  the  United  States,  or  in  any  man- 
ner, or  by  any  means,  otherwise  than  in  discharge  of  his 
proper  official  duties,  aids  or  assists  in  the  prosecution 
or  support  of  any  such  claim,  or  receives  any  gratuity, 
or  any  share  of  or  interest  in  any  claim  from  any  claim- 
«- 1 nt  against  the  United  States,  with  intent  to  aid  or  as- 
sist, or  in  consideration  of  having  aided  or  assisted,  in 
the  prosecution  of  such  claim,  shall  pay  a  fine  of  not 


APPENDIX.  553 

more  than  five  thousand  dollars,  or  suffer  imprisonment 
not  more  than  one  year,  or  both.'*  (Section  5498,  Re- 
vised Statutes.) 

"It  shall  not  be  lawful  for  any  person  appointed  after 
the  first  day  of  June,  one  thousand  eight  hundred  and 
seventy-two,  as  an  officer,  clerk,  or  employe  in  any  of  the 
departments,  to  act  as  counsel,  attorney,  or  agent  for 
prosecuting  any  claim  against  the  United  States,  which 
was  pending  in  either  of  said  departments  while  he  was 
such  officer,  clerk,  or  employe,  nor  in  any  manner,  nor  by 
any  means,  to  aid  in  the  prosecution  of  any  such  claim, 
within  two  years  next  after  he  shall  have  ceased  to  be 
such  officer,  clerk,  or  employe."  (Section  190,  Revised 
Statutes. ) 

"Any  person  prosecuting  claims,  either  as  attorney  or 
on  his  own  account,  before  any  of  the  departments  or 
bureaus  of  the  United  States,  shall  be  required  to  take 
the  oath  of  allegiance,  and  to  support  the  Constitution 
of  the  United  States,  as  required  of  persons  in  the  civil 
service/'      (Section  3478,  Revised  Statutes.) 

"The  oath  provided  for  in  the  preceding  section  may 
be  taken  before  any  justice  of  the  peace,  notary  public, 
or  other  person  who  is  legally  authorized  t<>  administer 
an  oath  in  the  State  or  district  where  the  same  may  be 
administered."     i  Section  3479,  Revised  Statutes,  i 

The  act  of  May  13,  1884,  see.  2,  (23  Stats..  l>l>  i .  pro- 
vides thai  the  oath  above  required  shall  he  thai  pre- 
scribed by  section  17.">7.  Revised  Statutes,  which  is  as 
follows : 

"I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will  sup- 
porl  and  defend  the  Constitution  of  the  United  States 
against  all  enemies,  foreign  and  domestic;  that  I  will 
bear  true  faith  and  allegiance  to  the  same;  that    I    take 


554  ADMINISTRATIVE    LAW. 

this  obligation  freely,  without  any  mental  reservation  or 
purpose  of  evasion ;  and  that  I  will  well  and  faithfully 
discharge  the  duties  of  the  office  on  which  I  am  about  to 
enter.     So  help  me  God." 

REGULATIONS. 

"1.  Under  the  authority  conferred  on  the  Secretary  of 
the  Interior  by  the  fifth  section  of  the  act  of  July  4. 
1884,  it  is  hereby  prescribed  that  an  attorney  at  law  who 
desires  to  represent  claimants  before  the  Department 
or  one  of  its  bureaus  shall  file  a  certificate  of  the  clerk 
of  the  United  States,  State,  or  Territorial  court,  duly  au- 
thenticated under  the  seal  of  the  court,  that  he  is  an  at- 
torney in  good  standing. 

"2.  Any  person  (not  an  attorney  at  law)  who  desires 
to  appear  as  agent  for  claimants  before  the  Department 
or  one  of  its  bureaus  must  file  a  certificate  from  a  judge 
of  a  United  States,  State,  or  Territorial  court,  duly  au- 
thenticated under  the  seal  of  the  court,  that  such  per- 
son is  of  good  moral  character  and  in  good  repute,  pos- 
sessed of  the  necessary  qualifications  to  enable  him  to 
render  claimants  valuable  service,  and  otherwise  compe- 
tent to  advise  and  assist  them  in  the  presentation  of  their 
claims. 

"3.  The  Secretary  may  demand  additional  proof  of 
qualifications,  and  reserves  the  right  to  decline  to  rec- 
ognize any  attorney,  agent,  or  other  person  applying  to 
represent  claimants  under  this  rule. 

"4.  The  oath  of  allegiance  required  by  section  3478  of 
the  United  States  Revised  Statutes  must  also  be  filed. 

"5.  In  the  case  of  a  firm,  the  names  of  the  individuals 
composing  the  firm  must  be  given,  and  a  certificate  and 
oath  as  to  each  member  of  the  firm  will  be  required. 


APPENDIX.  555 

u6.  Unless  specially  called  for,  the  certificate  above  re- 
ferred to  will  not  be  required  of  any  attorney  or  agent 
heretofore  recognized  and  now  in  good  standing  before 
the  Department. 

"7.  An  applicant  for  admission  to  practice  under  the 
above  regulations  must  address  a  letter  to  the  Secretary 
of  the  Interior,  inclosing  the  certificate  and  oath  above 
required,  in  which  letter  his  full  uame  and  post-office 
address  must  be  given.  He  must  state  whether  or  not 
he  has  ever  been  recognized  as  attorney  or  agent  before 
this  Department  or  any  bureau  thereof,  and,  if  so,  wheth- 
er he  has  ever  been  suspended  or  disbarred  from  prac- 
tice. He  must  also  state  whether  he  holds  any  office  of 
trust  or  profit  under  the  Government  of  the  United 
States. 

"8.  No  person  who  has  been  an  officer,  clerk,  or  em- 
ployee of  this  Department  within  two  years  prior  to  his 
application  to  appear  in  any  case  pending  herein  shall 
be  recognized  or  permitted  to  appear  as  an  attorney 
or  agent  in  any  such  case  as  shall  have  been  pending  in 
the  Department  at  or  before  the  date  he  left  the  service : 
Provided,  This  rule  shall  not  apply  to  officers,  clerks,  or 
employees  of  the  Patent  Office,  nor  to  cases  therein. 

"9.  Whenever  an  attorney  or  agent  is  charged  with  im- 
proper practices  in  connection  with  any  mailer  before  a 

bureau  of  this  Depart nt,  the  head  of  such  bureau  shall 

investigate  the  charge,  giving  the  attorney  or  agent  due 
notice,  together  with  a  statement  of  the  charge  against 
him,  and  allow  him  an  opportunity  to  be  heard  in  the 
premises.  When  the  investigation  shall  have  been  con- 
cluded, all  the  papers  shall  be  forwarded  to  the  Depart- 
ment, with  a  statement  of  the  facts  and  such  recommen- 


55b  ADMINISTRATIVE    LAW. 

dations  as  to  disbarment  from  practice  as  the  head  of 
the  bureau  may  deem  proper,  for  the  consideration  of 
the  Secretary  of  the  Interior.  During  the  investigation 
the  attorney  or  agent  will  be  recognized  as  such,  unless 
for  special  reasons  the  Secretary  shall  order  his  suspen- 
sion from  practice. 

"10.  If  any  attorney  or  agent  in  good  standing  before 
the  Department  shall  knowingly  employ  as  subagent  or 
correspondent  a  person  who  has  been  prohibited  from 
practice  before  the  Department,  it  will  be  sufficient  rea- 
son for  the  disbarment  of  the  former  from  practice. 

"11.  Upon  the  disbarment  of  an  attorney  or  agent,  no- 
tice thereof  will  be  given  to  the  heads  of  bureaus  of  this 
Department,  and  to  the  other  Executive  Departments; 
and  thereafter,  until  otherwise  ordered,  such  disbarred 
person  will  not  be  recognized  as  attorney  or  agent  in  any 
claim  or  other  matter  before  this  Department  or  any 
bureau  thereof." 


APPENDIX  F. 

LAWS  APPLICABLE  TO  THE  ADMINISTRATION 
OF  THE  INTERNAL  REVENUE  LAWS. 

SUPERVISION. 

Sec.  3172,  as  amended  by  section  34,  act  of  August  28, 
1894.  (28  Stat.,  509.)  Every  collector  shall,  from  time 
to  time,  cause  his  deputies  to  proceed  through  every  part 
of  his  district  and  inquire  after  and  concerning  all  per- 
sons therein  who  are  liable  to  pay  any  internal  revenue 
/'//.  and  all  persons  owning  or  having  the  care  and  man- 
agement of  any  objects  liable  to  pay  any  tax,  and  to 
make  a  list  of  such  persons  and  enumerate  said  objects. 

Sec.  3173,  as  amended  by  section  •  '/.  act  of  August  28, 
1894.  (28  Stat.,  509.)  That  it  shall  be  the  duty  of  any 
person,  partnership,  firm,  association,  or  corporation, 
made  liable  to  any  duty,  special  tax,  or  other  tax  im- 
posed by  law,  when  not  otherwise  provided  for,  in  case 
of  a  special  tax  on  or  before  the  thirty-firsl  day  of  July 
in  each  year,  in  case  of  income  tax  on  or  before  the  first 
Monday  of  March  in  each  year,  and  in  oilier  cases  before 
the  day  on  which  the  taxes  accrue,  to  make  a  list  or  re- 
turn, verified  by  oath  or  affirmation,  to  the  collector  or  a 
deputy  collector  of  the  districl  where  located,  of  the  ar- 
ticles or  objects,  including  the  amount  of  annual  income, 
charged  with  a  duty  or  tax,  the  quantity  of  goods,  wares, 
and  merchandise  made  or  sold,  and  charged  with  a  tax, 


558  ADMINISTRATIVE    LAW. 

tbe  several  rates  and  aggregate  amount,  according  to  the 
forms  and  regulations  to  be  prescribed  by  the  Commis- 
sioner of  Internal  Revenue,  with  the  approval  of  the  Sec- 
retary of  the  Treasury,  for  which  such  person,  partner- 
ship, firm,  association,  or  corporation  is  liable:  Pro- 
vided, That  if  any  person  liable  to  pay  any  duty  or  tax, 
or  owning,  possessing,  or  having  the  care  or  management 
of  property,  goods,  wares,  and  merchandise,  articles  or 
objects  liable  to  pay  any  duty,  tax,  or  license,  shall  fail 
to  make  and  exhibit  a.  list  or  return  required  by  law,  but 
shall  consent  to  disclose  the  particulars  of  any  and  all 
the  property,  goods,  wares,  and  merchandise,  articles 
and  objects  liable  to  pay  any  duty  or  tax,  or  any  business 
or  occupation  liable  to  pay  any  tax  as  aforesaid,  then, 
and  in  that  case,  it  shall  be  the  duty  of  the  collector  or 
deputy  collector  to  make  such  list  or  return,  which,  be- 
ing distinctly  read,  consented  to,  and  signed  and  verified 
by  oath  or  affirmation  by  the  person  so  owning,  possess- 
ing, or  having  the  care  and  management  as  aforesaid,  may 
be  received  as  the  list  of  such  person:  Provided  further. 
That  in  case  no  annual  list  or  return  has  been  rendered 
by  such  person  to  the  collector  or  deputy  collector  as  re- 
quired by  law,  and  the  person  shall  be  absent  from  his  or 
her  residence  or  place  of  business  at  the  time  the  collector 
or  a  deputy  collector  shall  call  for  the  annual  list  or  re- 
turn, it  shall  be  the  duty  of  such  collector  or  deputy  col- 
lector to  leave  at  such  place  of  residence  or  business,  with 
some  one  of  suitable  age  and  discretion,  if  such  be  present, 
otherwise  to  deposit  in  the  nearest  post-office  a  note  or 
memorandum  addressed  to  such  person,  requiring  him 
or  her  to  render  to  such  collector  or  deputy  collector  the 
list  or  return  required  by  law,  within  ten  days  from  the 


APPENDIX.  559 

date  of  such  note  or  memorandum,  verified  by  oath  or 
affirmation.  And  if  any  person  on  being  notified  or  re- 
quired as  aforesaid  shall  refuse  or  negled  to  render  such 
list  or  return  within  the  time  required  as  aforesaid,  or 
whenever  any  person  who  is  required  to  deliver  a  month- 
ly or  other  return  of  objects  subject  to  tax  fails  to  do  so 
at  the  time  required,  or  delivers  any  return  which,  in  the 
opinion  of  the  collector,  is  false  or  fraudulent,  or  con- 
tains any  undervaluation  or  understatement,  it  shall  be 
lawful  for  the  collector  to  summon  such  person,  or  any 
other  person  having  possession,  custody,  or  care  of  books 
of  account  containing  entries  relating  to  the  business  of 
such  person,  or  any  other  person  he  may  deem  proper,  to 
appear  before  him  and  produce  such  books,  at  a  time  and 
place  named  in  the  summons,  and  to  give  testimony  or 
answer  interrogatories,  under  oath,  respecting  any  ob- 
jects liable  to  tax  or  the  returns  thereof.  The  collector 
may  summon  any  person  residing  or  found  within  the 
State  in  which  his  district  lies;  and  when  the  person 
intended  to  be  summoned  does  not  reside  and  can  not  be 
found  within  such  State,  he  may  enter  any  collection  dis- 
trict where  such  person  may  be  found,  and  there  make 
the  examination  herein  authorized.  And  to  this  end 
he  may  there  exercise  all  the  authority  which  he  might 
lawfully  exercise  in  the  district  for  which  he  was  com- 
missioned. 

SUMMONS. 

Sec.  3174.  Such  summons  shall  in  all  cases  be  served 
by  a  deputy  collector  of  the  district  where  the  person  to 
whom  it  is  directed  may  be  found,  by  an  attested  copy 
delivered  to  such  person  in  hand,  or  left  ;it  his  last  and 
usual  place  of  abode,  allowing  such  person  one  day  for 


560  ADMINISTRATIVE    LAW. 

each  twenty-five  miles  he  may  be  required  to  travel,  com- 
puted from  the  place  of  service  to  the  place  of  examina- 
tion ;  and  the  certificate  of  service  signed  by  such  dep- 
uty shall  be  evidence  of  the  facts  it  states  on  the  hear- 
ing of  an  application  for  an  attachment.  When  the 
summons  requires  the  production  of  books,  it  shall  be 
sufficient  if  such  books  are  described  with  reasonable 
certainty. 

Sec.  3175.  Whenever  any  person  summoned  under  the 
two  preceding  sections  neglects  or  refuses  to  obey  such 
summons,  or  to  give  testimony,  or  to  answer  interroga- 
tories as  required,  the  collectors  may  apply  to  the  judge 
of  the  district  court  or  to  a  commissioner  of  the  circuit 
court  of  the  United  States  for  the  district  within  which 
the  person  so  summoned  resides  for  an  attachment 
against  him  as  for  a  contempt.  It  shall  be  the  duty  of 
the  judge  or  commissioner  to  hear  the  application,  and, 
if  satisfactory  proof  is  made,  to  issue  an  attachment,  di- 
rected to  some  proper  officer,  for  the  arrest  of  such  per- 
son, and  upon  his  being  brought  before  him  to  proceed 
to  a  hearing  of  the  case ;  and  upon  such  hearing  the  judge 
or  commissioner  shall  have  power  1<>  make  such  order  as 
he  shall  deem  proper  not  inconsistent  with  existing  laws 
for  the  punishment  of  contempts,  to  enforce  obedience 
t<>  the  requirements  of  the  summons  and  to  punish  such 
person  for  his  default  or  disobedience. 

RETURNS. 

Sec.  3176,  as  amended  by  section  •  >'/.  act  of  August  28, 
IS'.)',  (28  Stat.,  509).  When  any  person,  corporation, 
company,  or  association  refuses  or  neglects  to  render  any 
return  or  list  required  by  law,  or  renders  a  false  or 
fraudulent  return  or  list,  the  collector  or  any  deputy  col- 


APPENDIX.  =,(,] 

lector  shall  make,  according  to  the  best  information 
which  he  can  obtain,  including  that  derived  from  the  evi- 
dence elicited  by  the  examination  of  the  collector,  and 
on  his  own  view  and  information,  such  list  or  return,  ac- 
cording to  the  form  prescribed,  of  the  income,  property, 
and  objects  liable  to  tax  owned  or  possessed  or  under  the 
care  or  management  of  such  person,  or  corporation,  com- 
pany, or  association  and  the  Commissioner  of  Internal 
Revenue  shall  assess  all  taxes  not  paid  by  stamps,  in- 
cluding the  amount,  if  any,  due  for  special  tax,  income 
or  other  tax,  and  in  case  of  any  return  of  a  false  or 
fraudulent  list  or  valuation  intentionally  lie  shall  add 
one  hundred  per  centum  to  such  tax;  and  in  case  of  a 
refusal  or  neglect,  except  in  cases  of  sickness  or  absence, 
to  make  a  list  or  return,  or  to  verify  the  same  as  afore- 
said, he  shall  add  fifty  per  centum  to  such  tax.  In  case 
of  neglect  occasioned  by  sickness  or  absence  as  aforesaid 
the  collector  may  allow  such  further  time  for  making 
and  delivering  such  list  or  return  as  he  may  deem  nec- 
essary, not  exceeding  thirty  days.  The  amount  so  added 
to  the  tax  shall  be  collected  at  the  same  time  and  in  the 
same  manner  as  the  tax  unless  the  neglect  or  falsity  is 
discovered  after  the  tax  has  been  paid,  in  which  case  the 
amount  so  added  shall  be  collected  in  the  same  manner 
as  the  tax  ;  and  the  list  or  return  so  made  and  subscribed 
by  such  collector  or  deputy  collector  shall  be  held  prima 
facie  good  and  sufficient  for  all  legal  purposes. 

Sec.  3177.  Any  collector,  deputy  collector,  or  inspector 
may  enter,  in  the  daytime,  any  building  or  place  where 
any  articles  or  objects  subject  to  tax  are  made,  produced, 
or  kept,  within  his  district,  so  far  as  it  may  he  necessary, 
for  the  purpose  of  examining  said  articles  or  objects. 
And  any  owner  of  such  building  or  place,  or  person  hav- 
Arim.  Law— 36. 


562  ADMINISTRATIVE    LAW. 

ing  the  agency  or  superintendence  of  the  same,  who  re- 
fuses to  admit  such  officer,  or  to  suffer  him  to  examine 
such  article  or  articles,  shall,  for  every  such  refusal,  for- 
feit five  hundred  dollars.  And  when  such  premises  are 
open  at  night,  such  officers  may  enter  them  while  so 
open,  in  the  performance  of  their  official  duties.  And  if 
any  person  shall  forcibly  obstruct  or  hinder  any  collect- 
or, deputy  collector,  or  inspector,  in  the  execution  of  any 
power  and  authority  vested  in  him  by  law,  or  shall  for- 
cibly rescue  or  cause  to  be  rescued  any  property,  arti- 
cles, or  objects  after  the  same  shall  have  been  seized  by 
him,  or  shall  attempt  or  endeavor  so  to  do,  the  person  so 
offending,  excepting  in  cases  otherwise  provided  for, 
shall,  for  every  such  offense,  forfeit  and  pay  the  sum  of 
five  hundred  dollars,  or  double  the  value  of  the  property 
so  rescued,  or  be  imprisoned  for  a  term  not  exceeding 
two  years,  at  the  discretion  of  the  court. 

Sec.  3179.  Whenever  any  person  delivers  or  discloses 
to  the  collector  or  deputy  any  false  or  fraudulent  list, 
return,  account,  or  statement,  with  intent  to  defeat  or 
evade  the  valuation,  enumeration,  or  assessment  intended 
to  lie  made,  or,  being  duly  summoned  to  appear  to  tes- 
tify, or  to  appear  and  produce  such  books  as  aforesaid, 
neglects  to  appear  or  to  produce  said  books,  he  shall  be 
tiued  not  exceeding  one  thousand  dollars,  or  be  impris- 
oned not  exceeding  one  year,  or  both,  at  the  discretion 
of  the  court,  with  costs  of  prosecution. 

Sec.  31S0.  Whenever  there  are  in  any  district  any  ar- 
ticles not  owned  or  possessed  by  or  under  the  care  or  con- 
trol of  any  person  within  such  district,  and  liable  to  be 
taxed,  and  of  which  no  list  has  been  transmitted  to  the 
collector,  as  required  by  law,  the  collector  or  one  of  his 
deputies  shall  enter  the  premises  where  such  articles  are 


APPENDIX.  563 

situated  and  shall  take  such  view  thereof  as  may  be  nec- 
essary, and  make  lists  of  the  same,  according  to  the  form* 
prescribed.  Said  lists,  being  subscribed  by  such  collect- 
or or  deputy,  shall  be  taken  as  sufficient  lists  of  such  arti- 
cles for  all  purposes. 

Sec.  3181.  The  lists  or  returns  aforesaid  shall,  where 
not  otherwise  especially  provided  for,  be  taken  with  ref- 
erence to  the  day  fixed  for  that  purpose  by  this  Title  as 
aforesaid;  and  where  duties  accrue  at  other  and  differ- 
ent times,  the  list  shall  be  taken  with  reference  to  the 
time  when  said  taxes  become  due,  and  shall  be  denomi- 
nated annual,  monthly,  and  special  lists  or  returns. 

ASSESSMENTS. 

Sec.  3182.  The  Commissioner  of  Internal  Revenue  is 
hereby  authorized  and  required  to  make  the  inquiries, 
determinations,  and  assessments  of  all  taxes  and  penal- 
ties imposed  by  this  Title,  or  accruing  under  any  former 
internal-revenue  act,  where  such  taxes  had  not  been  duly 
paid  by  stamp  at  the  time  and  in  the  manner  provided 
by  law,  and  shall  certify  a  list  of  such  assessments  when 
made  to  the  proper  collectors  respectively,  who  shall  pro- 
ceed to  collect  and  account  for  the  taxes  and  penalties  so 
certified.  Whenever  it  is  ascertained  that  any  list  which 
lias  been  or  shall  be  delivered  to  any  collector,  is  imper- 
fect or  incomplete  in  consequence  of  the  omission  of  the 
name  of  any  person  liable  to  tax,  or  in  consequence  of 
any  omission,  or  understatement,  or  undervaluation,  or 
false  or  fraudulent  statemenl  contained  in  any  return 
made  by  any  person  liable  to  tax,  the  Commissioner  of 
Internal  Revenue  may,  at  any  time  within  fifteen  months 
from  the  time  of  the  delivery  of  the  list  to  the  collector 
as  aforesaid,  enter  on  any  monthly  or  special   list   the 


564  ADMINISTRATIVE    LAW. 

name  of  such  person  so  omitted,  together  with  the 
amount  of  tax  for  which  he  may  have  been  or  shall  be- 
come liable,  and  also  the  name  of  any  such  person  in 
respect  to  whose  return,  as  aforesaid,  there  has  been  or 
shall  be  any  omission,  undervaluation,  understatement, 
or  false  or  fraudulent  statement,  together  with  the 
amount  for  which  such  person  may  be  liable,  above  the 
amount  for  which  he  may  have  been  or  shall  be  assessed 
upon  any  return  made  as  aforesaid ;  and  he  shall  certify 
and  return  such  list  to  the  collector  as  required  by  law. 
And  all  provisions  of  law  for  the  ascertainment  of  lia- 
bility to  any  tax,  or  the  assessment  or  collection  thereof, 
shall  be  held  to  apply,  so  far  as  may  be  necessary,  to 
the  proceedings  herein  authorized  and  directed. 

COLLECTION. 

Sec.  3183,  as  amended  by  section  3,  act  of  March  1, 
1879  (20  Stat.,  327).  It  shall  be  the  duty  of  the  col- 
lectors, or  their  deputies,  in  their  respective  districts, 
and  they  are  authorized,  to  collect  all  the  taxes  imposed 
by  law,  however  the  same  may  be  designated.  And 
every  collector  and  deputy  collector  shall  give  receipts 
for  all  sums  collected  by  him,  excepting  only  lohen  the 
same  are  in  payment  for  stamps  sold  and  delivered;  but 
no  collector  or  deputy  collector  shall  issue  a  receipt  in 
lien  of  a  stamp  representing  a  tax. 

[Sec.  3183«.]  Section  37,  act  of  August  28,  189J,  (28 
Stat.,  509).  That  it  shall  be  the  duty  of  every  collector 
of  internal  revenue,  to  whom  any  payment  of  any  taxes 
other  than  the  tax  represented  by  an  adhesive  stamp  or 
othex'  engraved  stamp  is  made  under  the  provisions  of 
this  Act,  to  give  to  the  person  making  such  payment  a 
full  written  or  printed  receipt,  expressing  the  amount 


APPENDIX.  565 

paid  and  the  particular  account  for  which  such  payment 
was  made;  and  whenever  such  payment  is  made  such 
collector  shall,  if  required,  give  a  separate  receipt  for 
each  tax  paid  by  any  debtor,  on  account  of  payments 
made  to  or  to  be  made  by  him  to  separate  creditors  in 
such  form  that  such  debtor  can  conveniently  produce 
the  same  separately  to  his  several  creditors  in  satisfac- 
tion of  their  respective  demands  to  the  amounts  specified 
in  such  receipts;  and  such  receipts  shall  be  sufficient 
evidence  in  favor  of  such  debtor,  to  justify  him  in  with- 
holding the  amount  therein  expressed  from  his  next 
payment  to  Us  creditor;  but  such  creditor  may,  upon 
giving  to  his  debtor  a  full  written  receipt,  acknowledg- 
ing the  payment  to  him  of  whatever  sum  may  be  actually 
paid,  and  accepting  the  amount  of  tax  paid  as  aforesaid 
(specifying  the  same)  as  a  further  satisfaction  of  the 
debt  to  that  amount,  require  the  surrender  to  him  of 
such  collector's  receipt. 

Sec  3184.  Where  it  is  not  otherwise  provided,  the  col- 
lector shall  in  person  or  by  deputy,  within  ten  days  after 
receiving  any  list  of  taxes  from  the  Commissioner  of  In- 
ternal Revenue,  give  notice  to  each  person  liable  to  pay 
any  taxes  stated  therein,  to  be  left  at  his  dwelling  or 
usual  place  of  business,  or  to  be  sent  by  mail,  stating  the 
amount  of  such  taxes  and  demanding  payment  thereof. 
If  such  person  does  not  pay  the  taxes  within  ten  days 
after  the  service  or  the  sending  by  mail  of  such  notice,  it 
shall  be  the  duty  of  the  collector  or  his  deputy  to  col- 
lect the  said  taxes  with  a  penalty  of  five  per  centum  ad- 
ditional upon  the  amount  of  taxes,  and  interest  at  the 
rate  of  one  per  centum  a  month. 

Sec.  3185.  All  returns  required  to  be  made  monthly 
by  any  person  liable  to  tax  shall  be  made  on  or  before 


566  ADMINISTRATIVE    LAW. 

the  tenth  day  of  each  month,  and  the  tax  assessed  or  due 
thereon  shall  be  returned  by  the  Commissioner  of  In- 
ternal Revenue  to  the  collector  on  or  before  the  last  day 
of  each  month.  All  returns  for  which  no  provision  is 
otherwise  made  shall  be  made  on  or  before  the  tenth  day 
of  the  month  succeeding  the  time  when  the  tax  is  due 
and  liable  to  be  assessed,  and  the  tax  thereon  shall  be 
returned  as  herein  provided  for  monthly  returns,  and 
shall  be  due  and  payable  on  or  before  the  last  day  of  the 
month  in  which  the  assessment  is  so  made.  When  the 
said  tax  is  not  paid  on  or  before  the  last  day  of  the 
month,  as  aforesaid,  the  collector  shall  add  a  penalty  of 
five  per  centum,  together  with  interest  at  the  rate  of  one 
per  centum  per  month,  upon  such  tax  from  the  time  the 
same  became  due;  but  no  interest  for  a  fraction  of  a 
month  shall  be  demanded :  Provided,  That  notice  of  the 
time  when  such  tax  becomes  due  and  payable  is  given  in 
such  manner  as  may  be  prescribed  by  the  Commissioner 
of  Internal  Revenue.  It  shall  then  be  the  duty  of  the 
collector,  in  case  of  the  non-payment  of  said  tax  on  or 
before  the  last  day  of  the  month,  as  aforesaid,  to  demand 
payment  thereof,  with  five  per  centum  added  thereto, 
and  interest  at  the  rate  of  one  per  centum  per  month,  as 
aforesaid,  in  the  manner  prescribed  by  law ;  and  if  said 
tax,  penalty,  and  interest,  are  not  paid  within  ten  days 
after  such  demand,  it  shall  be  lawful  for  the  collector  or 
his  deputy  to  make  distraint  therefor,  as  provided  by 
law. 

ENFORCEMENT. 

Sec.  3186,  as  amended  by  section  3,  act  of  March  1, 
1879  (20  mat.,  327).  If  any  person  liable  to  pay  any 
tax  neglects  or  refuses  to  pay  the  same  after  demand, 
the  amount  shall  be  a  lien  in  favor  of  the  United  States 


APPENDIX.  567 

from  the  time  when  the  assessment-list  was  received  by 
the  collector,  except  when  otherwise  provided,  until  paid, 
with  the  interest,  penalties,  and  costs  that  may  accrue  in 
addition  thereto,  upon  all  property  and  rights  to  prop- 
erty belonging  to  such  person. 

Sec.  3187.  If  any  person  liable  to  pay  any  taxes  neg- 
lects or  refuses  to  pay  the  same  within  ten  days  after 
notice  and  demand,  it  shall  be  lawful  for  the  collector 
or  his  deputy  to  collect  the  said  taxes,  with  five  per  cen- 
tum additional  thereto,  and  interest  as  aforesaid,  by  dis- 
traint and  sale,  in  the  manner  hereafter  provided,  of  the 
goods,  chattels,  or  effects,  including  stocks,  securities, 
and  evidences  of  debt,  of  the  person  delinquent  as  afore- 
said: Prodded,  That  there  shall  be  exempt  from  dis- 
traint and  sale,  if  belonging  to  the  head  of  a  family,  the 
school-books  and  wearing  apparel  necessary  for  such 
family;  also  arms  for  personal  use,  one  cow,  two  hogs, 
five  sheep  and  the  wool  thereof,  provided  the  aggregate 
market-value  of  said  sheep  shall  not  exceed  fifty  dollars; 
the  necessary  food  for  such  cow,  hogs,  and  sheep,  for  a 
period  not  exceeding  thirty  days;  fuel  to  an  amount  not 
greater  in  value  than  twenty-five  dollars;  provisions  to 
an  amount  not  greater  than  fifty  dollars ;  household  fur- 
niture kept  for  use  to  an  amount  not  greater  than  three 
hundred  dollars ;  and  the  books,  tools,  or  implements,  of 
a  trade  or  profession,  to  an  amount  not  greater  than  one 
hundred  dollars  shall  also  be  exempt;  and  the  officer 
making  the  distraint  shall  summon  three  disinterested 
householders  of  the  vicinity,  who  shall  appraise  and  set 
apart  to  the  owner  the  amount  of  property  herein  de- 
clared to  be  exempt. 

Sec.  3188.  In  such  case  of  neglect  or  refusal,  the  col- 
lector may  levy,  or  by  warrant  may  authorize  a  deputy 


568  ADMINISTRATIVE    LAW. 

collector  to  levy,  upon  all  property  and  rights  to  prop- 
erty, except  such  as  are  exempt  by  the  preceding  section, 
belonging  to  such  person,  or  on  which  the  said  lien  ex- 
ists, for  the  payment  of  the  sum  due  as  aforesaid,  with 
interest  and  penalty  for  non-payment,  and  also  of  such 
further  sum  as  shall  be  sufficient  for  the  fees,  costs,  and 
expenses  of  such  levy. 

Sec.  3189.  All  persons,  and  officers  of  companies  or 
corporations,  are  required,  on  demand  of  a  collector  or 
deputy  collector  about  to  distrain  or  having  distrained 
on  any  property,  or  rights  of  property,  to  exhibit  all 
books  containing  evidence  or  statements  relating  to  the 
subject  of  distraint,  or  the  property  or  rights  of  prop- 
erty liable  to  distraint  for  the  tax  due  as  aforesaid. 

DISTRAINT. 

Sec.  3190.  When  distraint  is  made,  as  aforesaid,  the 
officer  charged  with  the  collection  shall  make  or  cause 
to  be  made  an  account  of  the  goods  or  effects  distrained, 
a  copy  of  which,  signed  by  the  officer  making  such  dis- 
traint, shall  be  left  with  the  owner  or  possessor  of  such 
goods  or  effects,  or  at  his  dwelling  or  usual  place  of  busi- 
ness, with  some  person  of  suitable  age  and  discretion, 
if  any  such  can  be  found,  with  a  note  of  the  sum  demand- 
ed, and  the  time  and  place  of  sale;  and  the  said  officer 
shall  forthwith  cause  a  notification  to  be  published  in 
some  newspaper  within  the  county  wherein  said  dis- 
traint is  made,  if  a  newspaper  is  published  in  said  coun- 
ty, or  to  be  publicly  posted  at  the  post-office,  if  there  be 
one  within  five  miles,  nearest  to  the  residence  of  the  per- 
son whose  property  shall  be  distrained,  and  in  not  less 
than  two  other  public  places.  Such  notice  shall  specify 
the  articles  distrained,  and  the  time  and  place  for  the 


APPENDIX.  559 

sale  thereof.  Such  time  shall  not  be  less  than  ten  nor 
more  than  twenty  days  from  the  date  of  such  notifica- 
tion to  the  owner  or  possessor  of  the  property  and  the 
publication  or  posting  of  such  notice  as  herein  provided, 
and  the  place  proposed  for  the  sale  shall  not  be  more 
than  five  miles  distant  from  the  place  of  making  such  dis- 
traint. Said  sale  may  be  adjourned  from  time  to  time 
by  said  officer,  if  he  deems  it  advisable,  but  not  for  a  time 
to  exceed  in  all  thirty  days. 

Sec.  3191.  When  property  subject  to  tax,  but  upon 
which  the  tax  has  not  been  paid,  is  seized  upon  distraint 
and  sold,  the  amount  of  such  tax  shall,  after  deducting 
the  expenses  of  such  sale,  be  first  appropriated  out  of 
the  proceeds  thereof  to  the  payment  of  the  tax.  And 
if  no  assessment  of  such  tax  has  been  made  upon  such 
property,  the  collector  shall  make  a  return  thereof  in  the 
form  required  by  law,  and  the  Commissioner  of  Internal 
Revenue  shall  assess  the  tax  thereon. 

Sec.  3192.  When  any  property  advertised  for  sale  un- 
der distraint,  as  aforesaid,  is  of  a  kind  subject  to  tax,  and 
the  tax  has  not  been  paid,  and  the  amount  bid  for  such 
property  is  not  equal  to  the  amount  of  the  tax,  the  col- 
lector may  purchase  the  same  in  behalf  of  the  United 
States  for  an  amount  not  exceeding  the  said  tax.  All 
property  so  purchased  may  be  sold  by  the  collector,  un- 
der such  regulations  as  may  be  prescribed  by  the  Com- 
missioner of  Internal  Revenue.  The  collector  shall  ren- 
der to  the  Commissioner  a  distinct  account  of  all  char- 
ges incurred  in  such  sales,  and,  in  case  of  sale,  shall  pay 
into  the  Treasury  the  surplus,  if  any  there  be,  after  de- 
fraying all  lawful  charges  and  fees. 

Sec.  3193.  In  any  case  of  distraint  for  the  payment  of 
the  taxes  aforesaid,  the  goods,  chattels,  or  effects  so  dis- 


570  ADMINISTRATIVE    LAW. 

trained  shall  be  restored  to  the  owner  or  possessor,  if, 
prior  to  the  sale,  payment  of  the  amount  due  is  made  to 
the  proper  officer  charged  with  the  collection,  together 
with  the  fees  and  other  charges;  but  in  case  of  nonpay- 
ment as  aforesaid,  the  said  officer  shall  proceed  to  sell 
the  said  goods,  chattels,  or  effects  at  public  auction,  and 
shall  retain  from  the  proceeds  of  such  sale  the  amount 
demandable  for  the  use  of  the  United  States,  and  a  com- 
mission of  five  per  centum  thereon  for  his  own  use,  with 
the  fees  and  charges  for  distraint  and  sale,  rendering  the 
overplus,  if  any  there  be,  to  the  person  who  may  be  en- 
titled to  receive  the  same. 

SALE. 

Sec.  3194.  In  all  cases  of  sale,  as  aforesaid,  the  cer- 
tificate of  such  sale  shall  be  prima  facie  evidence  of  the 
right  of  the  officer  to  make  such  sale,  and  conclusive  evi- 
dence of  the  regularity  of  his  proceedings  in  making  the 
sale,  and  shall  transfer  to  the  purchaser  all  right,  title, 
and  interest  of  such  delinquent  in  and  to  the  property 
sold;  and  where  such  property  consists  of  stocks,  said 
certificate  shall  be  notice,  when  received,  to  any  corpora- 
tion, company,  or  association  of  said  transfer,  and  shall 
be  authority  to  such  corporation,  company,  or  associa- 
tion to  record  the  same  on  their  books  and  records  in  the 
same  manner  as  if  transferred  or  assigned  by  the  party 
holding  the  same,  in  lieu  of  any  original  or  prior  certifi- 
cates, which  shall  be  void,  whether  canceled  or  not.  And 
said  certificates,  where  the  subject  of  sale  is  securities 
or  other  evidences  of  debt,  shall  be  good  and  valid  re- 
ceipts to  the  person  holding  the  same,  as  against  any 
person  holding,  or  claiming  to  hold,  possession  of  such 
securities  or  other  evidences  of  debt. 


APPENDIX.  571 

Sec.  3195.  When  any  property  liable  to  distraint  for 
taxes  is  not  divisible,  so  as  to  enable  the  collector  by  a 
sale  of  part  thereof  to  raise  the  whole  amount  of  the  tax, 
with  all  costs,  charges,  and  commissions,  the  whole  of 
such  property  shall  be  sold,  and  the  surplus  of  the  pro- 
ceeds of  the  sale,  after  satisfying  the  tax,  costs,  and  char- 
ges, shall  be  paid  to  the  person  legally  entitled  to  receive 
the  same;  or,  if  he  can  not  be  found,  or  refuses  to  receive 
the  same,  shall  be  deposited  in  the  Treasury  of  the  Unit- 
ed States,  to  be  there  held  for  his  use  until  he  makes  ap- 
plication therefor  to  the  Secretary  of  the  Treasury,  who, 
upon  such  application  and  satisfactory  proofs  in  support 
thereof,  shall,  by  warrant  on  the  Treasury,  cause  the 
same  to  be  paid  to  the  applicant. 

Sec.  3196.  When  goods,  chattels,  or  effects  sufficient 
to  satisfy  the  taxes  imposed  upon  any  person  are  not 
found  by  the  collector  or  deputy  collector,  he  is  author- 
ized to  collect  the  same  by  seizure  and  sale  of  real  estate. 

Sec.  3197,  as  amended  by  section  3.  act  of  March  /, 
787.9  (20  Stat.,  327).  The  officer  making  the  seizure 
mentioned  in  the  preceding  section  shall  give  notice  to 
the  person  whose  estate  it  is  proposed  to  sell  by  giving 
him  in  hand,  or  leaving  at  his  last  or  usual  place  of  abode, 
if  he  has  any  such  within  the  collection-district  where 
said  estate  is  situated,  a  notice,  in  writing,  stating  what 
particular  estate  is  to  be  sold,  describing  the  same  with 
reasonable  certainty,  and  the  time  when  and  place  where 
said  officer  proposes  to  sell  the  same;  which  time  shall 
not  be  less  than  twenty  nor  more  than  forty  days  from 
the  time  of  giving  said  notice.  The  said  officer  shall  also 
cause  a  notification  to  the  same  effect  to  be  published  in 
some  newspaper  within  the  county  where  such  seizure 
is  made,  if  any  such  there  be,  and  shall  also  cause  a  like 


572  ADMINISTRATIVE    LAW. 

notice  to  be  posted  at  the  post-office  nearest  to  the  estate 
seized,  and  in  two  other  public  places  within  the  county; 
and  the  place  of  said  sale  shall  not  be  more  than  five 
miles  distant  from  the  estate  seized,  except  by  special 
order  of  the  Commissioner  of  Internal  Revenue.  At  the 
time  and  place  appointed,  the  officer  making  such  seizure 
shall  proceed  to  sell  the  said  estate  at  public  auction,  of- 
fering the  same  at  a  minimum  price,  including  the  ex- 
pense of  making  such  levy,  and  all  charges  for  advertis- 
ing and  an  officer's  fee  of  ten  dollars.  When  the  real 
estate  so  seized  consists  of  several  distinct  tracts  or  par- 
cels, the  officer  making  sale  thereof  shall  offer  each  tract 
or  parcel  for  sale  separately,  and  shall,  if  he  deem  it  ad- 
visable, apportion  the  expenses,  charges,  and  fees  afore- 
said to  such  several  tracts  or  parcels,  or  to  any  of  them, 
in  estimating  the  minimum  price  aforesaid.  If  no  per- 
son offers  for  said  estate  the  amount  of  said  minimum 
price,  the  officer  shall  declare  the  same  to  be  purchased 
by  him  for  the  United  States;  otherwise  the  same  shall 
be  declared  to  be  sold  to  the  highest  bidder. 

And  in  case  the  same  shall  be  declared  to  be  purchased 
for  the  United  States,  the  officer  shall  immediately  trans- 
mit a  certificate  of  the  purchase  to  the  Commissioner  of 
Internal  Revenue,  and,  at  the  proper  time,  as  hereafter 
provided,  shall  execute  a  deed  therefor,  after  its  prepara- 
tion and  the  indorsement  of  approval  as  to  its  form  by 
the  United  States  district  attorney  for  the  district  in 
which  the  property  is  situate,  and  shall  without  dglay 
cause  the  same  to  be  duly  recorded  in  the  proper  registry 
of  deeds,  and  immediately  thereafter  shall  transmit  such 
deed  to  the  Commissioner  of  Internal  Revenue. 

And  said  sale  may  be  adjourned  from  time  to  time  by 
said  officer  for  not  exceeding  thirty  days  in  all,  if  he 


APPENDIX. 


573 


shall  think  it  advisable  so  to  do.  If  the  amount  bid  shall 
not  be  then  and  there  paid,  the  officer  shall  forthwith 
proceed  to  again  sell  said  estate  in  the  same  manner. 

And  it  is  hereby  provided,  That  all  certificates  of  pur- 
chase, and  deeds  of  property  purchased  by  the  United 
States  under  the  internal-revenue  laws,  on  sales  for 
taxes,  or  under  executions  issued  from  United  States 
courts,  which  now  are,  or  hereafter  may  be,  found  in  the 
office  of  any  collector,  United  States  marshal,  or  United 
States  district  attorney,  shall  be  immediately  transmit- 
ted by  such  officers  respectively  to  the  Commissioner  of 
Internal  Kevenue. 

And  it  is  hereby  further  provided,  That  for  the  prepa- 
ration and  approval  by  the  United  States  district  attor- 
ney of  each  deed  as  above  required,  a  fee  of  five  dollars 
shall  be  allowed  to  that  officer,  to  be  paid  by  the  United 
States,  and  which  he  shall  account  for  in  his  emolument 
returns. 

Sec.  3198.  Upon  any  sale  of  real  estate,  as  provided  in 
the  preceding  section,  and  the  payment  of  the  purchase 
money,  the  officer  making  the  seizure  and  sale  shall  give 
to  the  purchaser  a  certificate  of  purchase,  which  shall 
set  forth  the  real  estate  purchased,  for  whose  taxes  the 
same  was  sold,  the  name  of  the  purchaser,  and  the  price 
paid  therefor ;  and  if  the  said  real  estate  be  not  redeemed 
in  the  manner  and  within  the  time  hereafter  provided, 
the  said  collector  or  deputy  collector  shall  execute  to  the 
said  purchaser,  upon  his  surrender  of  said  certificate,  a 
deed  of  the  real  estate  purchased  by  him  as  aforesaid, 
reciting  the  facts  se1  forth  in  said  certificate,  and  in  ac- 
cordance with  the  laws  of  the  State  in  which  such  real 
estate  is  situate  upon  the  subject  of  sales  of  real  estate 
under  execution. 


574  ADMINISTRATIVE    LAW. 

Sec.  3199.  The  deed  of  sale  given  in  pursuance  of  the 
preceding  section  shall  be  prima  facie  evidence  of  the 
facts  therein  stated;  and  if  the  proceedings  of  the  officer 
as  set  forth  have  been  substantially  in  accordance  with 
the  provisions  of  law,  shall  be  considered  and  operate  as 
a  conveyance  of  all  the  right,  title,  and  interest  the  party 
delinquent  had  in  and  to  the  real  estate  thus  sold  at  the 
time  the  lien  of  the  United  States  attached  thereto. 

Sec.  3200.  Any  collector  or  deputy  collector  may,  for 
the  collection  of  taxes  imposed  upon  any  person,  and 
committed  to  him  for  collection,  seize  and  sell  the  lands 
of  such  person  situated  in  any  other  collection  district 
within  the  State  in  which  such  officer  resides:  and  his 
proceedings  in  relation  thereto  shall  have  the  same  effect 
as  if  the  same  were  had  in  his  proper  collection  district. 

Sec.  3201.  Any  person  whose  estate  may  be  proceeded 
against  as  aforesaid  shall  have  the  right  to  pay  the 
amount  due,  together  with  the  costs  and  charges  there- 
on, to  the  collector  or  deputy  collector  at  any  time  prior 
to  the  sale  thereof,  and  all  further  proceedings  shall 
cease  from  the  time  of  such  payment. 

Sec.  3202.  The  owners  of  any  real  estate  sold  as  afore- 
said, their  heirs,  executors,  or  administrators,  or  any 
pet  son  having  any  interest  therein,  or  a  lien  thereon,  or 
any  person  in  their  behalf,  shall  be  permitted  to  redeem 
the  land  sold,  or  any  particular  tract  thereof,  at  any 
time  within  one  year  after  the  sale  thereof,  upon  pay- 
ment to  the  purchaser,  or,  in  case  he  can  not  be  found 
in  the  county  in  which  the  land  to  be  redeemed  is  situ- 
ate, then  to  the  collector  of  the  district  in  which  the  land 
is  situate,  for  the  use  of  the  purchaser,  his  heirs  or  as- 
signs, the  amount  paid  by  the  said  purchaser  and  inter- 
est thereon  at  the  rate  of  twenty  per  centum  per  annum. 


APPENDIX.  575 

Sec.  3203,  as  amended  by  section  3,  act  of  March  /, 
1879  (20  Stat.,  327).  It  shall  be  the  duty  of  every  col- 
lector to  keep  a  record  of  all  sales  of  land  made  in  his 
collection  district,  whether  by  himself  or  his  deputies, 
or  by  another  collector,  in  which  shall  be  set  forth  the 
tax  for  which  any  such  sale  was  made,  the  dates  of  seiz- 
ure and  sale,  the  name  of  the  party  assessed,  and  all 
proceedings  in  making  said  sale,  amount  of  fees  and  ex- 
penses, the  name  of  the  purchaser  and  the  date  of  the 
deed ;  and  said  record  shall  be  certified  by  the  officer 
making  the  sale.  And  on  or  before  the  fifth  day  of  each 
succeeding  month  he  shall  transmit  a  copy  of  such  record 
of  the  preceding  month  to  the  Commissioner  of  Internal 
Revenue. 

And  it  shall  be  the  duty  of  every  deputy  making  sale, 
as  aforesaid,  to  return  a  statement  of  all  his  proceed- 
ings to  the  collector,  and  to  certify  the  record  thereof. 
In  case  of  the  death  or  removal  of  the  collector,  or  the 
expiration  of  his  term  of  office  from  any  other  cause, 
said  record  shall  be  delivered  to  his  successor  in  office; 
and  a  copy  of  every  such  record,  certified  by  the  collect- 
or, shall  be  evidence  in  any  court  of  the  truth  of  the  facts 
therein  stated. 

Sec.  3204.  When  any  lands  sold,  as  aforesaid,  are  re- 
deemed as  heretofore  provided,  the  collector  shall  make 
entry  of  the  fact  upon  the  record  mentioned  in  the  pre- 
ceding section,  and  the  said  entry  shall  be  evidence  of 
such  redemption. 

Sec.  3205.  Whenever  any  property,  personal  or  real, 
which  is  seized  and  sold  by  virtue  of  the  foregoing  pro- 
visions, is  not  sufficient  to  satisfy  the  claim  o\  the  Unit- 
ed States  for  which  distraint  or  seizure  is  made,  the  col- 
lector may,  thereafter,  and  as  often  as  the  same  may  be 


576  ADMINISTRATIVE    LAW. 

necessary,  proceed  to  seize  and  sell,  in  like  manner,  any 
other  property  liable  to  seizure  of  the  person  against 
whom  such  claim  exists,  until  the  amount  due  from  him, 
together  with  all  expenses,  is  fully  paid. 

Sec.  3206.  The  Commissioner  of  Internal  Kevenue 
Khali  by  regulation  determine  the  fees  and  charges  to  be 
allowed  in  all  cases  of  distraint  and  other  seizures ;  and 
shall  have  power  to  determine  whether  any  expense  in- 
curred in  making  any  distraint  or  seizure  was  necessary. 

JUDICIAL    PROCESS. 

Sec.  3207.  In  any  case  where  there  has  been  a  refusal 
or  neglect  to  pay  any  tax,  and  it  has  become  necessary  to 
seize  and  sell  real  estate  to  satisfy  the  same,  the  Com- 
missioner of  Internal  Revenue  may  direct  a  bill  in  chan- 
cery to  be  filed,  in  a  district  or  circuit  court  of  the  United 
States,  to  enforce  the  lien  of  the  United  States  for  tax  up- 
on any  real  estate,  or  to  subject  any  real  estate  owned 
by  the  delinquent,  or  in  which  he  has  any  right,  title,  or 
interest,  to  the  payment  of  such  tax.  All  persons  having 
liens  upon  or  claiming  any  interest  in  the  real  estate 
sought  to  be  subjected  as  aforesaid,  shall  be  made  parties 
to  such  proceedings,  and  be  brought  into  court  as  pro- 
vided in  other  suits  in  chancery  therein.  And  the  said 
court  shall,  at  the  term  next  after  the  parties  have  been 
duly  notified  of  the  proceedings,  unless  otherwise  order- 
ed by  the  court,  proceed  to  adjudicate  all  matters  involv- 
ed 1  herein,  and  finally  determine  the  merits  of  all  claims 
to  and  liens  upon  the  real  estate  in  question,  and,  in  all 
cases  where  a  claim  or  interest  of  the  United  States 
therein  is  established,  shall  decree  a  sale  of  such  real  es- 
tate, by  the  proper  officer  of  the  court,  and  a  distribution 
of  the  proceeds  of  such  sale  according  to  the  findings  of 


APPENDIX.  577 

the  court  in  respect  to  the  interests  of  the  parties  and  of 
the  United  States. 

Sec.  3208,  as  amended  by  section  3,  act  of  March  1, 
1879  (20  Stat.,  327 J. 

The  Commissioner  of  Internal  Eevenue  shall  have 
charge  of  all  real  estate  which  is  now  or  shall  become  the 
property  of  the  United  States  by  judgment  of  forfeiture 
under  the  internal-revenue  laws,  or  which  has  been  or 
shall  be  assigned,  set  off,  or  conveyed  by  purchase  or  oth- 
erwise to  the  United  States  in  payment  of  debts  or  penal- 
ties arising  under  the  laws  relating  to  internal  revenue, 
or  which  has  been  or  shall  be  vested  in  the  United  States 
by  mortgage  or  other  security  for  the  payment  of  such 
debts,  and  of  all  trusts  created  for  the  use  of  the  United 
States  in  payment  of  such  debts  due  them ;  and,  with  the 
approval  of  the  Secretary  of  the  Treasury,  may  at  public 
vendue,  and  upon  not  less  than  twenty  days'  notice,  sell 
and  dispose  of  all  real  estate  owned  or  held  by  the  United 
States  as  aforesaid ;  and  until  such  sale  the  Commis- 
sioner of  Internal  Revenue,  with  the  approval  of  the 
Secretary  of  the  Treasury,  may  lease  such  real  estate 
owned  as  aforesaid  on  such  terms  and  for  such  period  as 
they  shall  deem  expedient. 

And  in  cases  where  real  estate  has  or  may  become  the 
property  of  the  United  States  by  conveyance  or  other- 
wise, in  payment  of  or  as  security  for  a  debt  arising  un- 
der the  laws  relating  to  infernal  revenue,  and  such  debt 
shall  have  been  paid,  together  with  the  interest  thereon, 
at  the  rate  of  one  per  centum  per  month,  to  the  United 
Stales,  within  two  years  from  the  date  of  the  acquisition 
of  such  real  estate,  it  shall  be  lawful  for  the  Commission- 
er of  Internal  Revenue,  with  the  approval  of  the  Secre- 

Adm.  Law — 37. 


578  ADMINISTRATIVE    LAW. 

tary  of  the  Treasury,  to  release  by  deed,  or  otherwise 
convey  such  real  estate  to  the  debtor  from  whom  it  was 
taken,  or  to  his  heirs  or  other  legal  representatives. 

Sec.  3209.  Whenever  a  collector  has  on  any  list  duly 
returned  to  him  the  name  of  any  person  not  within  his 
collection  district  who  is  liable  to  tax,  or  of  any  person 
so  liable  who  has,  in  the  collection  district  in  which  he  re- 
sides, no  sufficient  property  subject  to  seizure  or  dis- 
traint, from  which  the  money  due  for  tax  can  be  collect- 
ed, such  collector  shall  transmit  a  statement  containing 
the  name  of  the  person  liable  to  such  tax,  with  the 
amount  and  nature  thereof,  duly  certified  under  his 
hand,  to  the  collector  of  any  district  to  which  said  per- 
son shall  have  removed,  or  in  which  he  shall  have  proper- 
ty, real  or  personal,  liable  to  be  seized  and  sold  for  tax. 
Ami  the  collector  to  whom  the  said  certified  statement 
is  transmitted  shall  proceed  to  collect  the  said  tax  in  the 
same  way  as  if  the  name  of  the  person  and  objects  of  tax 
contained  in  the  said  certified  statement  were  on  any 
list  of  his  own  collection  district ;  and  he  shall,  upon  re- 
ceiving said  certified  statement  as  aforesaid,  transmit  his 
receipt  for  it  to  the  collector  sending  the  same  to  him. 

PAYMENT. 

Sec.  3210.  The  gross  amount  of  all  taxes  and  revenues 
received  or  collected  by  virtue  of  this  title,  or  of  any  law 
hereafter  enacted  providing  internal  revenue,  shall  be 
paid,  by  the  officers  receiving  or  collecting  the  same, 
daily  into  the  Treasury  of  the  United  States,  under  the 
instructions  of  the  Secretary  of  the  Treasury,  without 
any  abatement  or  deduction  on  account  of  salary,  com- 
pensation, fees,  costs,  charges,  expenses,  or  claims  of  any 
description;  and  a  certificate  of  such  payment,  stating 


APPENDIX.  579 

the  name  of  the  depositor  and  the  specific  account  on 
which  the  deposit  was  made,  signed  by  the  Treasurer,  As- 
sistant Treasurer,  designated  depositary,  or  proper  officer 
of  a  deposit  bank,  shall  be  transmitted  to  the  Commis- 
sioner of  Internal  Kevenue:  Provided,  That  in  districts 
where,  from  the  distance  of  the  officer,  collector,  or  agent 
receiving  or  collecting  such  taxes  and  revenues  from  a 
proper  Government  depository,  the  Secretary  of  the 
Treasury  may  deem  it  proper,  he  may  extend  the  time 
for  making  such  payment,  not  exceeding,  however,  in 
any  case  a  period  of  one  month. 

Sec.  3211.  The  Secretary  of  the  Treasury  is  authorized 
to  designate  one  or  more  depositories  in  each  State,  for 
the  deposit  and  safe-keeping  of  the  money  collected  by 
virtue  of  the  internal-revenue  laws;  and  the  receipt  of 
the  proper  officer  of  such  depository  to  a  collector  for  the 
money  deposited  by  him  shall  be  a  sufficient  voucher  for 
such  collector  in  the  settlement  of  his  accounts  at  the 
Treasury  Department. 

Sec.  3212.  Every  collector  shall,  at  the  expiration  of 
each  month  after  he  commences  his  collections,  transmit 
to  the  Commissioner  of  Internal  Revenue  a  statement  of 
the  collections  made  by  him  within  the  month.  And 
every  collector  shall  complete  the  collection  of  all  sums 
assigned  to  him  for  collection,  and  shall  pay  over  the 
same  into  the  Treasury,  and  shall  render  his  accounts  to 
the  Treasury  Department  as  often  as  lie  may  be  required. 

FORFEITURES. 

Sec.  3213.  It  shall  be  the  duty  of  the  collectors,  in 
their  respective  districts,  subject  to  the  provisions  of 

this  title,  to  prosecute  for  the  recovery  of  any  sums  which 
may  be  forfeited  by  law.     All  suits  for  fines,  penalties, 


580  ADMINISTRATIVE    LAW. 

and  forfeitures,  where  not  otherwise  provided  for,  shall 
be  brought  in  the  name  of  the  United  States,  in  any 
proper  form  of  action,  or  by  any  appropriate  form  of  pro- 
ceedings, qui  tarn  or  otherwise,  before  any  circuit  or  dis- 
trict court  of  the  United  States  for  the  district  within 
which  said  fine,  penalty,  or  forfeiture  may  have  been  in- 
curred, or  before  any  other  court  of  competent  jurisdic- 
tion; and  taxes  may  be  sued  for  and  recovered  in  the 
name  of  the  United  States,  in  any  proper  form  of  ac- 
tion, before  any  circuit  or  district  court  of  the  United 
States  for  the  district  within  which  the  liability  to  such 
tax  is  incurred,  or  where  the  party  from  whom  such  tax 
is  due  resides  at  the  time  of  the  commencement  of  the 
said  action. 

Sec.  3214.  No  suit  for  the  recovery  of  taxes,  or  of  any 
fine,  penalty,  or  forfeiture,  shall  be  commenced  unless 
the  Commissioner  of  Internal  Eevenue  authorizes  or 
sanctions  the  proceedings:  Provided,  That  in  case  of 
any  suit  for  penalties  or  forfeitures  brought  upon  infor- 
mation received  from  any  person,  other  than  a  collector 
or  deputy  collector,  the  United  States  shall  not  be  sub- 
ject to  any  costs  of  suit. 

Sec.  3215.  It  shall  be  the  duty  of  the  Commissioner 
of  Internal  Eevenue,  with  the  approval  of  the  Secretary 
of  the  Treasury,  to  establish  such  regulations,  not  in- 
consistent with  law,  for  the  observance  of  revenue  offi- 
cers, district  attorneys,  and  marshals,  respecting  suits 
arising  under  the  internaj-revenue  laws  in  which  the 
United  States  is  a  party,  as  may  be  deemed  necessary 
for  the  just  responsibility  of  those  officers  and  the 
prompt  collection  of  all  revenues  and  debts  due  and  ac- 
cruing to  the  United  States  under  such  laws. 


APPENDIX.  581 

Sec.  3216.  All  judgments  and  moneys  recovered  or 
received  for  taxes,  costs,  forfeitures,  and  penalties,  shall 
be  paid  to  collectors  as  internal  taxes  are  required  to  be 
paid. 

DELINQUENCY. 

Sec.  3217.  When  any  collector  fails  either  to  collect 
or  to  render  his  account,  or  to  pay  over  in  the  manner 
or  within  the  times  provided  by  law,  the  (First)  Comp- 
troller of  the  Treasury  shall,  immediately  after  evidence 
of  such  delinquency,  report  the  same  to  the  Solicitor  of 
the  Treasury,  who  shall  issue  a  warrant  of  distress 
against  such  delinquent  collector,  directed  to  the  mar- 
shal of  the  district,  expressing  therein  the  amount  with 
which  the  said  collector  is  chargeable,  and  the  sums,  if 
any,  which  have  been  paid  over  by  him,  so  far  as  the 
same  are  ascertainable.  And  the  said  marshal  shall, 
himself,  or  by  his  deputy,  immediately  proceed  to  levy 
and  collect  the  sum  which  may  remain  due,  with  five  per 
centum  thereon,  and  all  the  expenses  and  charges  of 
collection,  by  distress  and  sale  of  the  goods  and  chat- 
tels, or  any  personal  effects  of  the  delinquent  collect- 
or, giving  at  least  five  days'  notice  of  the  time  and 
place  of  sale,  in  the  manner  provided  by  law  for  adver- 
tising sales  of  personal  property  on  execution  in  the 
State  wherein  such  collector  resides.  And  the  bill  of 
sale  of  the  officer  of  any  goods,  chattels,  or  other  per- 
sonal property,  distrained  and  sold  as  aforesaid,  shall 
be  conclusive  evidence  of  title  to  the  purchaser,  and 
pr'una  facie  evidence  of  the  right  of  the  officer  to  make 
such  sale,  and  of  the  correctness  of  his  proceedings  in 
selling  the  same.  And  for  want  of  goods  and  chattels, 
or  other  personal  effects  of  such  collector,  sufficient  to 
satisfy  any  warrant  of  distress,  issued  as  aforesaid,  the 


582  ADMINISTRATIVE    LAW. 

real  estate  of  such  collector,  or  so  much  thereof  as  may 
be  necessary  for  satisfying  the  said  warrant,  after  being 
advertised  for  at  least  three  weeks  next  before  the  time  of 
sale,  in  not  less  than  three  public  places  in  the  collection 
district,  and  in  one  newspaper  printed  in  the  county  or 
district,  if  any  there  be,  shall  be  sold  at  public  auction 
by  the  marshal  or  his  deputy.  Upon  such  sale,  the  mar- 
shal shall  make  and  deliver  to  the  purchaser  of  the  prem- 
ises sold  a  deed  of  conveyance  thereof,  to  be  executed  and 
acknowledged  in  the  manner  and  form  prescribed  by 
the  laws  of  the  State  in  which  said  lands  are  situated, 
and  said  deed  so  made  shall  invest  the  purchaser  with 
all  the  title  and  interest  of  the  defendant  named  in  said 
warrant,  existing  at  the  time  of  the  seizure  thereof.  And 
all  moneys  that  may  remain  of  the  proceeds  of  such 
sale  of  personal  or  real  property,  after  satisfying  the 
said  warrant  of  distress,  and  paying  the  reasonable  costs 
and  charges  of  sale,  shall  be  returned  to  the  proprietor 
of  the  property  sold  as  aforesaid. 

Sec.  3218.  Every  collector  shall  be  charged  with  the 
whole  amount  of  taxes,  whether  contained  in  lists  trans- 
mitted to  him  by  the  Commissioner  of  Internal  Revenue, 
or  by  other  collectors,  or  delivered  to  him  by  his  pred- 
ecessor in  office,  and  with  the  additions  thereto,  with 
the  par  value  of  all  stamps  deposited  with  him,  and  with 
all  moneys  collected  for  penalties,  forfeitures,  fees,  or 
costs;  and  he  shall  be  credited  with  all  payments  into 
the  Treasury  made  as  provided  by  law,  with  all  stamps 
returned  by  him  uncanceled  to  the  Treasury,  and  with 
the  amount  of  taxes  contained  in  the  lists  transmitted 
in  the  manner  heretofore  provided  to  other  collectors, 
and  by  them  receipted  as  aforesaid ;  also  with  the  amount 


APPENDIX.  583 

of  the  taxes  of  such  persons  as  may  have  absconded,  or 
become  insolvent,  prior  to  the  day  when  the  tax  ought, 
according  to  the  provisions  of  law,  to  have  been  collect- 
ed, and  with  all  uncollected  taxes  transferred  by  him 
or  by  his  deputy  acting  as  collector  to  his  successor  in  of- 
fice: Provided,  That  it  shall  be  proved  to  the  satisfac- 
tion of  the  Commissioner  of  Internal  Revenue,  who 
shall  certify  the  facts  to  the  (First)  Comptroller  of  the 
Treasury,  that  due  diligence  was  used  by  the  collector. 
And  each  collector  shall  also  be  credited  with  the  amount 
of  all  property  purchased  by  him  for  the  use  of  the 
United  States,  provided  he  faithfully  account  for  and 
pay  over  the  proceeds  thereof  upon  a  resale  of  the  same 
as  required  by  law. 

Sec.  3219.  In  case  of  the  death,  resignation,  or  re- 
moval of  any  collector,  all  lists  and  accounts  of  taxes  un- 
collected shall  be  transferred  to  his  successor  in  office 
as  soon  as  such  successor  is  appointed  and  qualified,  and 
it  shall  be  the  duty  of  such  successor  to  collect  the  same. 

REFUND. 

Sec.  3220.  The  Commissioner  of  Internal  Revenue, 
subject  to  regulations  prescribed  by  the  Secretary  of  the 
Treasury,  is  authorized,  on  appeal  to  him  made,  to  re- 
mit, refund,  and  pay  back  all  Taxes  erroneously  or  ille- 
gally assessed  or  collected,  all  penalties  collected  without 
authority,  and  all  taxes  that  appear  to  be  unjustly  as- 
sessed or  excessive  in  amount,  or  in  any  manner  wrong- 
fully collected;  also  to  repay  to  any  collector  or  deputy 
collector  the  full  amount  of  such  sums  of  money  as  may 
be  recovered  against  him. 

Sec.  3221,  as  amended  by  section  6,  act  of  Warch  L 
1879  (20  mat.,  327).     The  Secretary  of  the  Treasury, 


5S4  ADMINISTRATIVE    LAW. 

upon  the  production  to  him  of  satisfactory  proof  of  the 
actual  destruction  by  accidental  fire  or  other  casualty, 
and  without  any  fraud,  collusion,  or  negligence  of  the 
owner  thereof,  of  any  distilled  spirits,  while  the  same 
remained  in  the  custody  of  any  officer  of  internal  rev- 
enue in  any  distillery  warehouse,  or  bonded  warehouse 
of  the  United  States  and  before  the  tax  thereon  has  been 
paid,  may  abate  the  amount  of  internal  taxes  accruing 
thereon,  and  may  cancel  any  warehouse  bond,  or  enter 
satisfaction  thereon,  in  whole  or  in  part,  as  the  case  may 
be.  And  if  such  taxes  have  been  collected  since  the  de- 
struction of  said  spirits,  the  said  Secretary  shall  refund 
the  same  to  the  owners  thereof  out  of  any  moneys  in  the 
Treasury  not  otherwise  appropriated.  And  when  any 
distilled  spirits  are  hen  after  destroyed  by  accidental  -fire 
or  other  casualty,  without  any  fraud,  collusion,  or  neg- 
ligence of  the  owner  thereof,  after  the  time  when  the 
same  should  hare  been  drawn  off  by  the  ganger  and 
placed  in  the  distillery  warehouse  provided  by  lair,  no 
tax  shall  be  collected  on  such  spirits  so  destroyed,  or 
if  collected,  it  shall  be  refunded  upon  the  production 
of  satisfactory  proof  that  the  spirits  were  destroyed  as 
herein  specified. 

Sec.  3222.  The  preceding  section  shall  take  effect  in 
all  cases  of  loss  or  destruction  of  distilled  spirits  as 
aforesaid  which  have  occurred  since  January  one,  eigh- 
teen hundred  and  sixty-eight. 

Sec.  3223,  as  amended  by  section  3,  act  of  March  1, 
1879  (20  Stat.^  327).  When  the  owners  of  distilled 
spirits  in  the  cases  provided  for  by  the  two  preceding 
sections  may  be  indemnified  against  such  tax  by  a  valid 
claim  of  insurance  for  a  sum  greater  than  the  actual 


APPENDIX.  585 

value  of  the  distilled  spirits  befon  and  without  the  tax 
being  paid,  the  tax  shall  not  be  remitted  to  the  extent 
of  such  insurance. 

Sec.  3224.  No  suit  for  the  purpose  of  restraining  the 
assessment  or  collection  of  any  tax  shall  be  maintained 
in  any  court. 

Sec.  3225.  When  a  second  assessment  is  made  in  case 
of  any  list,  statement,  or  return,  which  in  the  opinion 
of  the  collector  or  deputy  collector  was  false  or  fraudu- 
lent, or  contained  any  understatement  or  undervalua- 
tion, no  taxes  collected  under  such  assessment  shall  be 
recovered  by  any  suit,  unless  it  is  proved  that  the  said 
list,  statement,  or  return  was  not  false  nor  fraudulent, 
and  did  not  contain  any  understatement  or  undervalu- 
ation. 

REVISION. 

Sec.  3226.  No  suit  shall  be  maintained  in  any  court 
for  the  recovery  of  any  internal  tax  alleged  to  have  been 
erroneously  or  illegally  assessed  or  collected,  or  of  any 
penalty  claimed  to  have  been  collected  without  author- 
ity, or  of  any  sum  alleged  to  have  been  excessive  or  in 
any  manner  wrongfully  collected,  until  appeal  shall  have 
been  duly  made  to  the  Commissioner  of  Internal  Rev- 
enue, according  to  the  provisions  of  law  in  that  regard, 
and  the  regulations  of  the  Secretary  of  the  Treasury 
established  in  pursuance  thereof,  and  a  decision  of  the 
Commissioner  has  been  had  therein  :  Provided,  That  if 
such  decision  is  delayed  more  than  six  months  from  the 
date  of  such  appeal,  then  the  said  suit  may  be  brought, 
without  first  having  a  decision  of  the  Commissioner  at 
any  time  within  the  period  limited  in  the  nexl  section. 

Sec.  3227.  No  suit  or  proceeding  for  the  recovery  of 


586  ADMINISTRATIVE    LAW. 

any  internal  tax  alleged  to  have  been  erroneously  or 
illegally  assessed  or  collected,  or  of  any  penalty  alleged 
to  have  been  collected  without  authority,  or  of  any  sum 
alleged  to  have  been  excessive  or  in  any  manner  wrong- 
fully collected,  shall  be  maintained  in  any  court  unless 
the  same  is  brought  within  two  years  next  after  the 
cause  of  action  accrued:  Provided,  That  actions  for 
such  claims  which  accrued  prior  to  June  six,  eighteen 
hundred  and  seventy-two,  may  be  brought  within  one 
year  from  said  date ;  and  that  where  any  such  claim  was 
pending  before  the  Commissioner,  as  provided  in  the 
preceding  section,  an  action  thereon  may  be  brought 
within  one  year  after  such  decision  and  not  after.  But 
no  right  of  action  which  was  already  barred  by  any  stat- 
ute on  the  said  date  shall  be  revived  by  this  section. 

Sec.  3228.  All  claims  for  the  refunding  of  any  in t fi- 
nal tax  alleged  to  have  been  erroneously  or  illegally  as- 
sessed or  collected,  or  of  any  penalty  alleged  to  have 
been  collected  without  authority,  or  of  any  sum  alleged 
to  have  been  excessive  or  in  any  manner  wrongfully  col- 
lected, must  be  presented  to  the  Commissioner  of  In- 
ternal Revenue  within  two  years  next  after  the  cause  of 
action  accrued:  Provided,  That  claims  which  accrued 
prior  to  June  six,  eighteen  hundred  and  seventy-two, 
may  be  presented  to  the  Commissioner  at  any  time  with- 
in one  year  from  said  date.  But  nothing  in  this  section 
shall  be  construed  to  revive  any  right  of  action  which 
was  already  barred  by  any  statute  on  that  date. 

Sec.  3229.  The  Commissioner  of  Internal  Revenue, 
with  the  advice  and  consent  of  the  Secretary  of  the 
Treasury,  may  compromise  any  civil  or  criminal  case 
arising  under  the  internal-revenue  laws  instead  of  com- 
mencing suit  thereon ;  and,  with  the  advice  and  consent 


APPENDIX.  587 

of  the  said  Secretary  and  the  recommendation  of  the 
Attorney-General,  he  may  compromise  any  such  case 
after  a  suit  thereon  has  been  commenced.  Whenever  a 
compromise  is  made  in  any  case  there  shall  be  placed  on 
file  in  the  office  of  the  Commissioner  the  opinion  of  the 
Solicitor  of  Internal  Revenue,  or  of  the  officer  acting  as 
such,  with  his  reasons  therefor,  with  a  statement  of  the 
amount  of  tax  assessed,  the  amount  of  additional  tax 
or  penalty  imposed  by  law  in  consequence  of  the  neglect 
or  delinquency  of  the  person  against  whom  the  tax  is 
assessed,  and  the  amount  actually  paid  in  accordance 
with  the  terms  of  the  compromise. 

Sec.  3230.  No  discontinuance  or  nolle  prosequi  of  any 
prosecution  under  section  three  thousand  two  hundred 
and  fifty-seven  shall  be  allowed  without  the  permission 
in  writing  of  the  Secretary  of  the  Treasury  and  the  At- 
torney-General. 

Sec.  3231.  It  shall  be  lawful  for  any  court  in  which 
any  suit  or  criminal  proceeding  arising  under  the  inter- 
nal-revenue laws  may  be  pending,  to  continue  the  same 
at  any  stage  thereof,  for  good  cause  shown  on  motion  by 
the  district  attorney. 

Sec.  31.  Act  June  13,  1898  (30  Stat.,  ','iS).  That  all 
administrative,  special,  or  stamp  provisions  of  law,  in- 
cluding the  laws  in  relation  to  the  assessment  of  taxes, 
not  heretofore  specifically  repealed  are  hereby  made  ap- 
plicable to  this  Act. 


TABLE  OF  CASES. 


[REFERENCES   are   to   sections.] 

A. 

Abney  v.  Clark,  37. 
Abry  v.  Gray,  60. 
Adams  v.  Ives,  117. 

v.  Wiscasset  Bank,  10. 
Advance  Decisions,  66,  123. 
Agent  of  Prison  v.  Rikemam,  9. 
Akin  v.  Denny,  12. 
Albion  Mfg.  Co.,  127. 
Albrecbt  v.  Long,  3,  67. 
Alexander  v.  McKenzie,  43,  44. 
Allen,  122. 

Ex  parte,  18,  24. 
Allis,  Ex  parte,  22,  23,  57. 
Allor  v.  Wayne  Co.  Auditors,  132. 
Alvord  v.  Barrett,  12. 
American  Ins.  Co.  v.  Canter,  32. 
American  Pavement  Co.  v.  Wagner,  114,  117,  135. 
Amperse  v.  Winslow,  15. 
Amy  v.  Supervisors,  12,  15. 
Anderson  v.  Pearce,  81. 
Anderson's  Lessee  v.  Brown,  63. 
Andrews  v.  Hovey,  22. 

v.  Judge  of  Probate,  23. 

v.  King,  49,  51,  67. 
Angle  v.  Runyon.  91. 
Appeal,  124. 
Appraisement,  124. 
Archy,  In  re,  27. 
Arms  v.  Knoxville,  11. 
Armstrong  v.  Ft.  Edward,  80. 

v.  United  States,  32. 
Arnson  v.  Murphy,  116. 
Arthur  v.  United  States,  101. 
Ashby  v.  White,  15. 
Atlantic,  etc.,  Co.  v.  Wilmington,  etc.,  R.  R.,  23. 


590  TABLE  OF  CASES. 

[references  are  to  sections.] 

Attorney  General,  58. 

v.  Detroit  Common  Council,  49. 

v.  May,  48. 

v.  Northampton,  115. 
Auditor  v.  Atcheson,  etc.,  R.  R.,  18. 

v.  Davies,  8. 
Auffmordt  v.  Hedden,  45,  116,  117. 
Averill  v.  Smith,  117. 
Avery  v.  Fox,  20. 
Ayers,  In  re,  14. 


B. 


Backman  v.  Charlestown,  74,  75. 
Baiz,    In  re,   30. 
Baker  v.  Kirk,  59. 

v.  Grice,  56. 

v.  Johnson,  38,  13^. 

v.  Ranney,  2,  12. 
Ballew  v.  United  States,  121. 
Baltimore  v.  Eschbach,  73,  74. 

v.  Hopkins  Hospital,  93. 

v.  Reynolds,  78. 

v.  State,  18,  22,  47. 
Banks,  Ex  parte,  40. 
Barksdale  v.  Cobb,  4,  38,  132. 
Bartlett  v.  Kane,  113. 

v.  Wilson,   116,   134. 
Barton  v.  Swepston,  75. 
Bassett  v.  Fish,  15. 
Bateman  v.  Colgan,  78,  80. 
Baugh  v.  Lamb,  12. 
Bayard  v.  United  States,  3,  27. 
Bean  v.  Territory,  48. 
Beard  v.  Decatur,  43. 
Beckham  v.  Nacke,  14. 
Beckwith  v.  Philby,  90,  91. 
Beers  v.  Arkansas,  8,  9. 
Belknap  v.  Schild,  15. 
Benalleck  v.  People,  73. 
Benner  v.  Porter,  32. 
Bennett,   106,  122. 
Benson  v.  United  States,  30. 
Benton  v.  Taylor,  31. 
Berne,  In  re,  54. 


TABLE  OF  CASES.  59! 


[references  are  to  sections.] 

Birdsall  v.  Clark,  63. 

Black,  Ex  parte,   18. 

Blackmore   v.    Boardman,   2. 

Blake  v.  United  States,  47. 

Bledsoe  v.  International  R.  Co.,  38,  115. 

Bloxham  v.  Consumers'  St.  R.  Co.,  133. 

*  v.  Florida  R.  R.,  8. 
Board  v.  Com'rs  of  Bladen,  1.  113. 
v.  Crego,  40. 
v.  Duffus,  18,  22,  49. 
v.  Finley,   9. 
v.  Gannt,  1,  8,  9,  14. 
v.  Guyandotte,  11. 
v.  McComb,  78. 
v.  Mason,  1,  131. 
v.  Porter,  131,  135. 
v.  Russell,  43. 
v.  Turner,  20,  22. 
v.  United  States,  10. 
v.  Vinalhaven,  11,  76. 
Boehm  v.  Mayor,  11,  76. 
Bolina,  The,  90,  92. 
Bonnel  v.  Dunn,  12. 
Boone  Co.  Com'rs  v.  State,  48. 
Booth  v.  Hanley,  87. 
Boske  v.  Comingore,  99,  133. 
Boutte  v.  Enmer,  87. 
Bowman  v.  Farnell,  9. 
Boyers  v.  Crane,  73. 
Boyes,  In  re,  113. 
Boyleston  v.  Kerr,  91. 
Bradford  v.  Justices,  46. 
Brashear  v.  Mason,  35. 
Brauner  v.  Felkner,  88. 
Brewer  v.  Davis,  47. 
Bridge  Co.,  Ex  parte,  116,   134. 

v.  County  Com'rs,  2,  12. 
Briggs  v.  Coleman,  15. 
Bright  v.  Murphy,  118. 
Brower  v.  Kantner,  49. 
Brooks  v.  Mangan,  9. 
Brown,  In  re,  128. 
Brown's  Adm'r  v.  Guyandotte,  10. 
Brumfield  v.  Douglas  Co.  Com'rs,  74. 


592  TABLE  OF  CASES. 

[references  are  to  sections.] 

Bryan  v.  Cattell,  3,  4,  38,  57,  58. 

v.  Walker,  89. 
Bubb's  Case,  108. 
Buckner  v.  Thompson,  79. 
Bunn  v.  People,  57. 
Bureh  v.  Hardwicke,  56. 
Burditt  v.   Allen,  113. 

Bureau  Co.  Sup'rs  v.  Chicago,  etc.,  R.  Co.,  116. 
Burns  v.  Erben,  87. 
Burroughs  v.  Eastman,  90,  91. 
Burton  v.  Fulton,  113. 

v.  State,  47. 
Butler  v.  Bates,  73. 
Butterworth  v.  United  States,  68,  125. 
Buttrick  v.  Lowell,  11,  76. 
Byers  v.  United  States,  44. 

c. 

Cady,  122. 

Caha  v.  United  States,  125. 
Caldwell  v.  Bush.  63. 
Callan  v.  Wilson,  32. 
Calloway  v.  Sturm,  55. 
Campbell  v.  Sherman,  13 

v.  United  States,  133. 

v.  Waite,  ■",  | . 
Carlisle  v.  United  States,  37. 
Carr  v.  Northern  Liberties,  35,  79. 

v.  State,  49. 
Carrick  v.  Lamar,  113. 
Carter  v.  Durango,  50. 

v.  Ruddy,  64. 
Cary   v.   Curtis,  113. 
Cass  Co.   v.   Johnston,   47. 
Castle  v.  Lawler,  44. 
Catholic  Bishop  v.  Gibbon,  64. 
Central  R.  R.  v.  Assessors,  116. 
Chalk  v.  Darden,  2,  35. 
Chamberlain  v.  Clayton,  113. 

v.  Sibley,  27,  38. 
Chase  v.  Canal  Co.,  39. 
Cheatham  v.  Phillips,  63. 

v.  United  States,  117. 


TABLE  OF  CASES.  593 

[references  are  to  sections.] 

Chicago,  etc.,  R.  R.  v.  Atchison  Co.  Com'rs,  116,  134,  135. 

v.  Jones,  23. 
Chisholm  v.  McGehee,  70. 
Chope  v.  Eureka,  11. 
Chorpenning  v.  United  States,  121. 
Chouteau  v.  Rouse,  1. 
Citizens'  Bank  v.  Wright,  39,  132. 
Clark  v.  Des  Moines,  73,  74,  78. 

v.  Herington,  134. 

v.  Miller,  19. 
Classification,   124. 
Clerk  of  Court,  123. 
Cleveland,  In  re,  18. 

v.  Backus,  46. 

v.  Tripp,  90,  94. 
Clinkenbeard  v.  United  States,  125. 
Clinton  v.  Bacon,  9. 
Clodfelter  v.  State,  8,  73. 
Clymer's  Appeal,  126. 
Coast  Survey,  108. 
Coblens  v.  Abel,  1,  12. 
Cockran  v.  Toner,  85. 
Coffee  v.  Tucker,  63. 
Coler  v.  Cleburne,  74. 
Collector  v.  Beggs,  125. 

v.  Day,  55. 

v.  Hubbard,   118. 
Collins  v.  McDaniel,  2,  12,  15. 

v.  Tracy,  49. 
Colon  v.  Lisk,  92. 
Comer  v.  Bankhead,  8,  44.  73.   81. 
Commissioner,  128. 

v.  Reeves.  90,  94. 

v.  Rose,  82. 

v.  Smith,  73,  75. 

v.  Whitney.  35,  125. 
Commonwealth  v.   Evans.  43. 

v.  Henry,  29,  31. 

v.  Lyter,  46. 

v.  McLaughlin.  3,  36,  78. 

v.  Martin,  2,  4,  38,  132. 

v.  Perkins,  70. 

Adm.  Law— 38. 


594  TABLE  OF  CASES. 

[references  are  to  sections.] 

Commonwealth  v.  Smith,  63. 

v.  Wright,  87. 
Compromises,  128. 
Conger  v.  Gilmer,  46. 
Construction  Co.  v.  Jury,  113. 
Cooper,  In  re,  27. 
Copes  v.  Matthew,  81. 
Corliss,  In  re,  54. 
Cotten  v.  Ellis,  39. 

v.  Phillips,  57. 
County  Board  v.  State  Board,  5,  36. 
County  Com'rs  v.  Duvall,  43,  77. 

v.  Jones,  43. 
Covington   v.  Rockingham,    63. 
Cox,  Ex  parte,  24. 
Cramer,  122. 
Crane  v.  Meginnis,  20. 
Crawford,  109. 
Crawfordsville  v.  Irwin,  8. 
Crawn  v.  Commonwealth,  82. 
Cross  v.  Harrison,  32. 
Currency  Min.  Co.,  127. 
Cutler  v.  Ashland,  81. 

D. 

Danley  v.  Whiteley,  38,  69,  132. 

Danolds  v.  State,  79. 

Dart  v.  Hercules,  79. 

Dart's  Case,  64. 

Davidson   v.   New   Orleans,  94,   114. 

Davis  v.  County  Com'rs,  32,  35. 

v.  Garland,  81. 

v.  State,  4,  69. 

v.  Strong,  114. 
Day,  In  re,  66. 

Day  L.  &  C.  Co.  v.  State,  56,  74. 
Debs,  In  re,  85,  89. 
Decatur  v.  Paulding,  3,  35,  121. 
Decision,  124. 

Deehan  v.  Johnson,  4,  35,  38. 
Delacauw  v.  Fosbery,  9. 
Delano  v.  Goodwin,  81. 
De  Lima  v.  Bidwell,  32, 


TABLE  OF  CASES.  595 


[REFERENCES  are  to  sections.] 


Dennett,  Petitioner,  19. 
Denver  v.  Dean,  2,  12,  59. 
Department  Clerks,  60. 
Detroit  v.  Blackeby,  10. 
De  Turk  v.  Commonwealth,  54. 
De  Walt  v.  Bartley,  48. 
Dewey  v.  Garvey,  9. 
Dickens  v.  Cemetery  Co.,  2,  35. 
Dietz  v.  Neenah,  116. 
Dillingham  v.  Snow,  114. 
Dinsman  v.  Wilkes,  3,  13. 
Divina  Pastora,  The,  28. 
Dobbins  v.  Erie  Co.  Com'rs,  55. 
Dock  &  Imp.  Co.  v.  Trustees,  8,  73. 
Doe  d.  Clark  v.  Braden,  30. 
Donahoe  v.  Richards,  113,  114. 
Donovan  v.  McAlpin,  77. 
Dooley  v.  United   States,   32. 
Douglass  v.  Barber,  87. 
Dow  v.  Wakefield,  23. 
Dowling  v.  Bowden,  1,  12. 
Downer  v.  Sent,   113,  116. 
Dox  v.  Postmaster  General,  82. 
Doyle  v.  Alderman  of  Raleigh,  44. 
Drawbaugh  v.  Blake,  126. 
Drehman  v.  Stifel,  88. 
Druecker  v.  Salomon,  27,  117. 
Dubuc  v.  Voss,  51,  68. 
Dunlop  v.  Monroe,  77. 
Dunn  v.  MacDonald,  81. 
Durand  v.  Hollins,  28. 
Dwinelle  v.  Henriquez,  81. 


E. 


Eames  v.  McDougall,  126. 

v.  Savage,  94. 
Eanes  v.  State,  91. 
Earnshaw  v.  United  States,  121. 
Eastridge,  105. 
Echols,  Ex  parte,  2,  35. 
Eckloff  v.  District,  50. 
Edes  v.  Boardman,  11,  113. 


596  TABLE  OF  CASES. 

[references  are  to  sections.] 

Edward's  Lessee  v.  Darby,  101. 

Edwards  v.  Le  Sueur,  8. 

Ela  v.  Shepard,  1,  90,  92. 

Elbers,  126. 

Eliason  v.  Coleman,  43,  45. 

Ely  v.  Parsons,  4,  63,  77. 

Empey  v.  Plugert,  115. 

Ennis,  122. 

Enterprise  Ass'n  v.  Zumstein,  131. 

Entick  v.  Carrington,  13. 

Erskine  v.  Hohnbach,  118. 

Eslava  v.  Jones,  1,  12,  117,  132. 

Evans  v.  Eaton,  116. 

Examination,  124. 

Executive  Communication,  Matter  of,  46. 

Exporters'  Case,  123. 


Fair,  In  re,  14. 

Fairfield  Co.  Bar  v.  Taylor,  49. 

Faith  v.  Pearson,  31. 

Farwell  v.  Rockland,  45. 

Fassett,  In  re,  135. 

Fees  of  Clerks  of  Courts,  64. 

Ferry  v.  Campbell,  117. 

Field  v.  Black,  127. 

v.  Commonwealth,  50. 

v.  Malster,  50. 
Fisher  v.  McGin,  13. 
Five  Per  Cent.  Cases,  100. 
Flatan  v.  State,  48. 
Flournoy  v.  Jeffersonville,  20. 
Floyd  Acceptances,  74. 
Fluty  v.  School  District,  73,  74. 
Foltz  v.  Karlin,  43,  56. 
Fong  v.  United  States,  38,  114. 
Ford  v.  Surget,  88. 
Forest  Reservations,  106. 
Foster  v.  Fowle,  126. 

v.  Neilson,  27. 
Fourteen  Rings,  32. 
Fowler  v.  Dodge,  65,  126. 

v.  Peirce,  4,  39. 


TABLE  OP  CASES.  597 


[references  are  to  sections.] 


Fox  v.  McDonald,  18,  20.  22,  57. 

Franklin  v.  Kaufman,  48. 

Frazier  v.  Turner,  1. 

Free  Entry,  124. 

Freeman  v.  Selectmen,  36,  40,  79. 

Freemont  v.  Crippen,  70. 

v.  United  States,  20. 
French  v.  Barber  Asphalt  Pav.  Co.,  116. 

v.  Fyan,  115. 
Fries  v.  Porch,  10. 
Fuller  v.  Ellis,  54,  55. 
Furloughs,  107,  108. 


G. 

Gage  v.  Currier,  118. 

Gaines  v.  Thompson,  2,  35,  114. 

Gallup  v.  Smith,  37. 

Gaskell,  122. 

Gatch  v.  Des  Moines,  116. 

Gelston  v.  Hoyt,  28. 

Georgia  v.  Stanton,  27,  29. 

German  Bank  v.  United  States,  82. 

Gibbons  v.  United  States,  10, 16. 

Gibson  v.  Mason,  94. 

Gidley  v.  Palmerston,  2,  3,  12,  13,  35,  131. 

Gilbert,  109,  123. 

Gill  v.  State,  4,  39. 

Gilmore  v.  Hentig,  113. 

Goods  of  George  III.,  8. 

Gordon  v.  United  States,  21,  23. 

Gough  v.  Dorsey,  24. 

Governor  v.  Nelson,  1,  38. 

Grant  v.  Secretary,  13,  49. 

Gray  v.  Granger,  43. 

v.  Pentland,  18. 

v.  State,  19. 

v.  Whitehouse,  127. 
Green,  122. 

v.  Mills,  19. 

v.  Purnell,  36. 


598  TABLE  OF  CASES. 

[befebences  are  to  sections.] 

Grider  v.  Tally,  115. 
Grisar  v.  McDowell,  31. 
Guthrie  v.  Hall,  31. 


H. 


Hahn  v.   United  States,  102. 
Haight  v.  Love,  47. 
Haley  v.  Clark,  27. 
Hale  v.  Woods,  76. 
Hall  v.  Collins,  63. 

v.  Steele,  4. 
Hallgren  v.  Campbell,  51. 
Ham  v.  Toledo  R.  R.,  115. 
Hamilton,  In  re,  64,  122. 
Hamlin  v.  Kassafer,  43. 
Hammond  v.  McLay,  49. 
Hann  v.  Lloyd,  1. 
Harbin  v.  Stewart,  78,  79. 
Hardy  v.  Murphy,  87. 
Harpending  v.  Haight,  1,  38,  132. 
Harris  v.  Gibbins,  75. 
Harrisburg  v.  McPherran,  116. 
Hartford  Bank  v.  Waterman,  15. 
Hartford  Co.  v.  Raymond,  22. 
Harwood  v.  Siphers,  1. 
Hatfield,  105,  107. 
Hathcote  v.  State,  54. 
Hawkins,  110. 

v.  Governor,  19,  29,  35,  69,  86,  8 

v.  Mitchell,  73. 

v.  United  States,  73. 
Hayburne's  Case,  23. 
Hayes  v.  Porter,  12. 
Haynes  v.  Butler,  80. 
Heads  of  Departments,  123. 
Hempstead  v.  Underbill's  Heirs,  23. 
Henderson  v.  Smith,  114. 
Hendricks  v.  Gonzales,  1. 
Hennen,  Ex  parte,  49. 
Heth  v.  Radford,  117. 
Hewitt  v.  Schultz,  100,  133. 
Hibbard  v.  Richmond,  126. 


TABLE  OF  CASES.  599 

[references  are  to  sections.] 


Hicks  v.  Dorn,  115. 

Hightower  v.  Overhaulser,  36. 

Highway  Commissioner  v.  Ely,  89,  113. 

Hilburn  v.  St.  Paul,  etc.,  R.  R.,  100,  lt)2,  133. 

Hildreth  v.  Crawford,  3,  35. 

Hilliard  v.  Connelly,  18,  27. 

Hines  v.  Chambers,  11,  92. 

Hodgson  v.  Dexter,  81. 

Hogue  v.  Penn,  89. 

Hoke  v.  Henderson,  22. 

Holbrook  v.  Wightman,  100,  101,  133. 

Hollinsworth  v.  State,  55. 

Holmes  v.  Mattoon,  8. 

v.  Sheridan,  89. 
Holt  v.  McLean,  12,  13,  82. 
Holten  v.  Lake  Co.  Com'rs,  82. 
Hook,  108,  122. 
Hooper  v.  Ferguson,  64. 
Hoover  v.  Barkhoof,  12. 
Horton  v.  Mayor,  11,  76. 
House  Bill,  In  re,  43,  58. 
Houston  v.  State,  92. 

Houston,  etc.,  R.  Co.  v.  Randolph,  18,  19. 
Hovey  v.  State,  29. 
Howard  v.  Clarke,  91. 
Howell  v.  Cooper,  40,  132. 
Hoyt  v.  Sullivan,  106,  108,  110. 
Hubbard  v.  Kelley,  117. 

v.  Woodsum,  73. 
Huey  v.  Richardson,  77,  80 
Hull,  In  re,  64,  126. 

v.  Commissioner.  60. 

v.  Marshall  Co.,  74. 
Humboldt  Co.  v.  County  Com'rs,  2,  38,  39. 
Humphry  v.  Sadler,  43,  44. 


Instructions,  128. 

Interstate  Commerce  Commission,  108,  123. 


600  TABLE  OF  CASES. 

[references  are  to  sections.] 


Jackson  Co.  Sup'rs  v.  Brush,  63. 
Jacobs  v.  Supervisors,  3,  37. 
Janitor,  Matter  of,  45. 
Japanese  Immigrant  Case,  130. 
Jarratt  v.  Gwathmey,  12. 
Johnson,  122. 

v.  Hacker,  49. 

v.  Jones,  85,  86. 

v.  Towsley,  135. 
Johnston  v.  Moorman,  91. 
Jones,  In  re,  66. 

v.  United  States,  10,  27,  28. 
Joyce  v.  Joyce,  63. 
Julian  v.  State,  58. 


K 


Kansas  R.  R.  v.  Reynolds,  37. 
Kaufman  v.  Stone,  49. 
Kearne  v.  Brygger,  100,  101. 
Kearney  v.  Creelman,  2,  12. 
Keeler,  Ex  parte,  92. 
Keenan  v.  Perry,  50,  51,  68,  116. 

v.  Southworth,  12. 
Keim  v.  United  States,  29. 
Kellar  v.  Savage,  90,  92. 
Kendall  v.  United  Stataes,  38,  132. 
Kennedy  v.  School  Dist,  44. 
Kennett  v.  Chambers,  28. 
Kenny  v.  Hudspeth,  44. 
Kerr  v.  Woolley,  14. 
Kimball  v.  Lamprey,  38,  132. 
Kindred  v.  Still,  91. 
Klein  v.   Pipes,  73. 
Knight  v.  Land  Ass'n,  66. 
Knot  v.  Gay,  90,  91. 
Kollock,  In  re,  133. 
Koonce  v.  Davis,  88. 
Koones  v.  District  of  Columbia,  73,  74. 


TABLE  OF  CASES.  601 


[references  are  to  sections.] 


Kottman  v.  Ayer,  46. 
Kracke,  126. 

Kreitz  v.  Behrensmeyer,  48. 
Kurtz  v.  Moffitt,  91,  98. 


L. 


La  Abra  Co.  v.  United  States.  24. 

Lamar  v.  Browne,  89. 

Lambert,  Ex  parte,  46. 

Land  Co.  v.  Routt,  1,  4,  18,  19,  27,  29,  30,  38,  39. 

Landram  v.  United  States,  99. 

Lane  v.  Scbomp,  3,  30. 

Langenberg  v.  Decker,  21,  22,  85,  86. 

Larson  v.  Olin,  27. 

La  Salle  Co.  v.  Simmons,  88. 

Las  Animas  Grant,  65. 

Latham  v.  Clark,  27. 

Lauback,  122. 

Law  &  Prac.  of  Reimbursement,  65. 

Lawrence  v.  Caswell,  121,  134. 

v.  Hanley,  46. 
Lawton  v.  Steel,  y0,  92. 
Lebscher  v.  Custer  Co.  Com'rs,  24. 
Lecourt  v.  Gaster,  1,  14,  15. 
Ledbetter  v.  State,  49. 
Leddy  v.  Crossman,  91. 
Lee,  In  re,  55. 

v.  Huff,  1,  14,  113,  131. 

v.  Munroe,  10,  73. 
Leigh's  Case,  43. 
Levy  v.  Mayor,  11. 
Lewis  v.  Wall,  60. 
Lightner  v.  Steinagel,  9. 
Lindsey  v.  Attorney  General,  45,  56,  57. 
Liquidated  Claims,  123. 
Liquidation,  124. 

Litchfield  v.  Register  &  Receiver,  115,  135. 
Little  v.  Lielie,  126. 
Little  Rock,  etc.,  R.  R.  v.  Worthen,  13. 
Locke  v.  Speed,  8. 
Lockwood  v.  Bank,  100,  133. 
Lodor  v.  Baker,  etc.,  Co.,  9. 


602  TABLE  OF  CASES 

[references  are  to  sections.] 

Logan  v.  United  States,  89. 
Logansport  v.  Justice,  88. 

v.  Wright,  46. 
Long  v.  Commissioners,  131,  135. 

v.  State,  90,  91. 
Lost  Bond  Case,  108. 
Loughborough  v.  Blake,  32. 
Louisiana  v.  Jumel,  14. 
Louisiana  College  v.  Treasurer,  36,  79. 
Love  v.  Atlanta,  11,  76. 

v.  Baehr,  58. 
Lowell  v.  Commissioners,  135. 
Lowry  v.  Thompson,  8. 
Lusk,  Ex  parte,  47. 
Luther,  122. 

v.  Borden,  27. 
Lynch  v.  Chase,  49. 

v.  Donnell,  80. 

M. 

Macbeath  v.  Haldimancl,  81. 

Maddox  v.  Kennedy,  9. 

Maddux  v.  United  States,  97,  99. 

Magruder  v.  Swaim,  1,  2,  4,  19,  30,  38,  69,  132. 

Maine  Losses,  123. 

Mann  v.  Richardson,  81. 

Manning's  Case,  105. 

Manufacturing  Co.  v.  Taylor,  8. 

Marbury  v.  Madison,  4,  35,  38,  51,  68,  79. 

Marksberry  v.  Beasley,  12. 

Maroney  v.  Council,  50. 

Marquez  v.  Frisbie,  115,  134. 

Marshall  Co.  Sup'rs  v.  Cook,  10,  76. 

Martin  v.  Ingham,  22,  29,  39. 

v.  Mott,  63. 

v.  Snowden,  72,  85. 

v.  State,  87. 
Mason  v.  Fearson,  37. 

v.  Rollins,  36. 
Masters'  Clerk's  Case,  59. 
Mauran  v.  Smith,  2,  4,  19.  30,  35,  86. 
Maxmilian  v.  Mayor,  76. 


TABLE  OF  CASES.  603 


[references  are  to  sections.] 


Maxwell  v.  Mcllroy,  45. 

v.  Pike,  118. 
Mayo  v.  County  Com'rs,  3,  36,  78,  79. 
McCarthy  v.  De  Armit,  91. 
McCaslin  v.  State,  10,  73. 
McClure  v.  Hill,  2,  12,  15. 
McCord  v.  High,  1,  2,  12,  15,  115,  118,  132. 
McCormick  v.  Burt,  117,  135. 

v.  Hayes,  135. 
McCornick  v.  Thatcher,  43. 
McCreary  v.  Rogers,  3,  36. 
McCuchen  v.  Windsor,  131. 
McCulloch  v.  Stone,  5,  38,  132. 
McCullough  v.  Hunter,  2,  4,  35. 
McDade  v.  Chester,  11,  76. 
McDaniel  v.  Tebbetts,  117. 

v.  Yuba  Co.,  45. 
McDonald  v.  New  York,  73,  74. 
McElfatrick,  122. 
McElrath  v.  United  States,  121. 
McGregor  v.  Balch,  54-56. 
McKecknie  v.  Ward,  82. 
McKenna  v.  Kimball,  77. 
McKinney  v.  Robinson.  1,  14,  131. 
McLaughlin  v.  Green,  85,  86,  89. 
McMahon  v.  Palmer,  90,  94. 
McManus  v.  Weston,  44. 
McMaster  v.  Herald,  67. 
McMeekin  v.  State,  9. 
McMillen  v.  Anderson,  90,  94. 
McSorley  v.  Hill,  133. 

McWhorter  v.  Pensacola  R.  Co.,  18,  23,  27,  29,  85. 
Meade  v.  Haines,  114. 

v.  United  States,  115,  135. 
Meadows  v.  Nesbit,  2,  38. 
Medbury  v.  United  States,  117. 
Mehringer  v.  State,  54. 
Melcher  v.  Boston,  54,  55. 
Menotti  v.  Dillon,  135. 
Merrill  v.  Humphrey,  134. 

v.  Sherburne,  18. 


604  TABLE  OF  CASES. 

[references  are  to  sections.] 

Merritt   v.    Cameron,    107. 

v.  McNally,  2,  12,  15. 

v.  Welsh,  99,  133. 
Metz  v.  Soule,  8. 
Michigan  Bank  v.  Hastings,  14. 
Michigan  L.  &  L.  Co.  v.  Rust,  125. 
Middle  Grounds,  The,  127. 
Middleton  v.  Low,  19,  40. 
Miles  v.  Bradford,  35. 
Militia  Bureau,  109. 
Miller,  In  re,  18,  22. 

v.  Horton,  113,  131,  134. 

v.  Minneapolis,  11,  76. 

v.  Roby,  2,  12. 

v.  Wheeler,  18,  22. 
Milwaukee  Iron  Co.  v.  Schubel,  118,  131. 
Miner  v.  Olin,  48. 
Minler  v.  State,  67. 

Minneapolis,  etc.,  R.  R.  v.  United  States,  102. 
Mississippi  v.  Durham,  66. 

v.  Johnson,  18,  19,  27,  29. 
Mitchell  v.  Clark,  13. 

v.  County  Com'rs,  74. 

v.  Harmony,  1,  88. 

v.  Rockland,  82,  85,  86. 
Monette  v.  Cratt,  63,  97,  98. 
Monticello,  etc.,  Co.  v.  Baltimore,  116. 
Montreal  v.  Mulcair,  11. 
Moore,  126. 

v.  Robbins,  114. 

v.  Tate,  8,  9. 
Morgan  v.  Daniels,  118,  125. 

v.  Pickard,  3,  37. 
Morrill  v.  Jones,  99,  133. 
Morris,  122. 
Morton  v.  Comptroller,  73. 

v.  Green,  27. 
Mosness,  Matter  of,  43. 
Mostyn  v.  Fabrigas,  2. 
Mott  v.  Coffman,  66,  127. 
Mueller,  122. 
Mulcairns  v.  Janesville,  11,  76. 


TABLE  OP  CASES.  605 

[references  are  to  sections.] 

Muller  v.  Ford,  81. 

Mulnix  v.  Mutual  Co.,  8,  74. 

Murphy  v.  Holbrook,  12,  77. 

Murray  v.  Carothers,  74,  81. 

Murray's  Lessee  v.  Hoboken  L.  &  I.  Co.,  22,  90,  93,  116. 

Musgrave  v.  Pulido,  29,  73,  78. 

Musser  v.  Adair,  90,  93. 

Myerle  v.  United  States,  75,  80. 

\\ 

Nabob  v.  East  India  Co.,  27. 

Navy  Regulations,  105. 

Neagle,  In  re,  54,  85,  89. 

Neal  v.  Joyner,  87. 

Neill  v.  Gates,  63. 

Nelson  Lumber  Co.  v.  McKinnon,  90,  93,  116. 

Newman  v.  Elam,  1,  14,  60,  131,  135. 

v.  Sylvesta,  81. 
Newport  Charter,  In  re,  44. 
Newsom  v.  Cocke,  49. 
New  York  Elevated  R.  Co.,  In  re,  18. 
New  York,  etc.,  R.  Co.'s  Appeal,  115,  135. 
Nichols  v.  Boston,  85,  86. 

v.  United  States,  117. 
Nishimura  Ekiu  v.  United  States,  135. 
Noble  v.  Logging  R.  R.,  2,  135. 
Northern  Pac.  R.  Co.  v.  Carland,  14. 
Norwood  v.  Baker,  116. 
Nougues  v.  Douglass,  8,  14. 
Notaries  Public,  Matter  of,  43. 
Nowell  v.  Wright,  2,  15,  132. 
Noyes  v.  Loring,  81. 


o. 


Oberteuffer  v.  Robertson,  117. 
O'Brien  v.  Reg.,  73,  76. 
Oelbermawn  v.  Merrit,  134. 
Ogden  v.  Raymond,  43,  81. 
Ogg  v.  Lansing,  11,  76. 
O'Hara  v.  State,  8. 


606  TABLE  OF  CASES. 

[references  are  to  sections.] 

Ohio  v.  Thomas,  54. 

Oliver  v.  Jersey  City,  54,  55. 

Olmsted  v.  Dennis,  1. 

O'Neill  v.  Sewell,  9. 

Opinion  of  Justices,  43. 

Orchard  v.  Alexander,  66,  125. 

Orne  v.  Barstow,  97,  133. 

Orono,  The,  31. 

Orr  v.  Quimby,  2,  12. 

Osborn  v.  Bank,  14. 

v.  Charlevoix  Cir.  Judge,  92. 
Osgood  v.  Nelson,  49. 
Owners  of  Land  v.  People,  20. 

P. 

Pacific  Exp.  Co.  v.  Cornell,  23. 

v.  Dalton,  131. 
Packard  v.  Sandford,  126. 
Pahlman  v.  Collector,  125. 
Palmer  v.  McMahon,  94. 
Parham  v.  Justices,  89. 
Parish  v.  St.  Paul,  50. 
Parker  v.  State,  31. 
Parmalee  v.  Baldwin,  114. 
Parsons  v.  Venzke,  '64,  65. 
Partlow  v.  Moore,  131. 
Passavant  v.  United  States,  124. 
Patton  v.  Board  of  Health,  43. 

v.  Vaughan,  50. 
Paulding  v.  Cooper,  81. 
Pawlowski  v.  Jenks,  7. 
Pearson  v.  Supervisors,  46. 
Peck  v.  Robinson,  81. 
Pending  Suits,  123. 
Penitentiary  Co.  v.  Gordon,  73,  74. 
Pennoyer  v.  McConnaughy,  14. 
Pensacola  R.  R.  v.  State,  113,  134,  135. 
Pension  Regulations,  106. 
People  v.  Auditor,  59. 

v.  Auditor  General,  3,  21,  36,  37,  78. 

v.  Bartells,  114. 

v.  Bell,  35. 


TABLE  OF  CASES.  (,07 


[references  are  to  sections.] 


People  v.  Bissell,  18,  19,  30. 
v.  Bull,  46. 
v.  Butler,  8. 
v.  Chapin,  2,  35. 
v.  Collins,  38. 
v.  Cullom,  35. 
v.  Curley,  54,  56. 
v.  Dalton,  49. 

v.  Dental  Examiners,  113,  134. 
v.  Dutcher,  46. 
v.  Governor,  19,  30,  35. 
v.  Harper,  22. 

v.  Hurlbut,  18,  22,  27,  29,  54,  56. 
v.  Kent,  2,  38. 
v.  Kipley,  24,  43. 
v.  Knickerbocker,  36,  78. 
v.  Langdon,  43,  44. 
v.  Mace,  69. 
v.  McClay,  70. 
v.  Mizner,  51,  68. 
v.  Osborne,  46. 
v.  Parker,  30. 
v.  Pickney,  44. 
v.  Roberts,  48. 
v.  Roosevelt,  51,  68,  70. 
v.  St.  Clair  Co.  Sup'rs,  82. 
v.  Schoonmaker,  57. 
v.  Schuyler,  69. 
v.  Scott,  20,  22. 
v.  Secretary,  29. 
v.  Simon,  92. 
v.  State  Auditors,  38. 
v.  State  Treasurer,  5,  39. 
v.  Stuart,  50. 
v.  Supervisors,  27,  40. 
v.  Thomas,  47. 
v.  Turner,  57. 
v.  Ulster,  etc.,  R.  R.,  20. 
v.  Vilas,  43. 
v.  Whitman,  54,  56. 
v.  Woodbury,  44. 
v.  Woodruff,  60. 
Perkins  v.  Auditor,  43. 
v.  New  Haven,  45,  56. 


(,08  TABLE  OP  CASES. 

[references  are  to  sections.] 

Perry  v.  Hyde,  76. 
Peters  v.  Auditor,  132. 

v.  United  States,  97,  98,  133. 
Pfund  v.  Valley  L.  &  T.  Co.,  4,  63. 
Phelps  v.  Hawley,  3,  37,  78. 
Phillips,  In  re,  128. 
Pittsburg  R.  R.  v.  Schaeffer.  82. 
Piatt  v.  Waterbury,  11. 
Poindexter  v.  Greenhow,  14. 
Polk  v.  James,  43. 
Porter  v.  Haight,  114. 

v.  Thomson,  18. 
Portland  R.  R.  v.  Grand  Trunk  R.  R.,  22,  23. 
Postmaster  General  v.  Trigg,  37. 
Powers  v.  Bank,  8. 

of  Officers,  66. 
Prather  v.  Hart,  46. 
Predmore,  122. 
Preston,  122. 

Pritchard  v.  Woodruff,  4,  39. 
Proceedings  in  rem,  etc.,  64,  124. 
Professor,  123. 
Protest,  124. 
Providence  v.  Miller,  81. 
Pueblo  Case,  65,  127. 

Q. 

Quackenbush  v.  United  States,  27,  46. 
Queen  v.  Atlanta,  51,  68. 
Quinn  v.  Hensel,  87. 
v.  Portsmouth,  49. 


R. 


R.  R.  Commissioners,  In  re,  21. 
Railroad  v.  Commonwealth,  8. 
Raleigh  v.  Goschen,  1,  8,  12,  77. 
Raleigh  Co.  v.  Jenkins,  35,  38,  40. 
Randall  v.  Wetherell,  1,  38. 
Ranson  v.  Black,  46. 
Ratcliffe,  122. 

Raymond  v.  Fish,  1,  113.  116, 
Raynsford  v.  Phelps,  12. 


TABLE  OF  CASES.  609 

[REFERENCES  are  to  sections.] 


Real  Estate,  64,  108. 

Real  Estate  Sav.  Bank  v.  United  States,  98. 

Reappraisements,  124. 

Re-enlistment  in  Navy,  106. 

Reeside  v.  Walker,  35. 

Reg.  v.  Income  Comm'rs,  38. 

v.  Secretary,  3,  35,  79. 
Regents  v.  Hamilton,  8. 

Relation  of  President  to  Executive  Dept.,  66. 
Reporting  Decisions,  123. 
Requisitions,  123. 
Review,  124. 

Revision  of  Accounts.  65.  123. 
Rex  v.  Commissioners,  131. 

v.  Pinney,  89. 
Reynolds  v.  United  States,  32. 
Richards  v.  Clarksburg,  49. 

v.  Wheeler,  2,  35. 
Richmond  v.  Long's  Adm'rs,  12. 
Richmond  Co.  Sup'rs  v.  Ellis,  75. 
Riebling,  Ex  parte,  22. 
Riley  v.  James,  132. 
Riorden,  122. 
Robertson  v.  Downing,  101. 

v.  Howard,  81. 

v.  Sichel,  77. 
Rodgers,  Ex  parte,  126. 

v.  Dutt,  12. 
Ronine,  122. 
Rose  v.  Himely,  28. 

Rules  for  Transaction  of  Business,  124. 
Runkle  v.  United  States,  63. 
Russell  v.  Devon,  10. 

v.  United  States,  8. 

s. 

St.  Joseph  Ins.  Co.  v.  Leland,  L2. 

v.  McCabe,  117. 
Saltonstall  v.  Russell,  117. 
Samuel's  Ex'r  v.  McDowell,  81. 
Sanborn,  In  re,  23. 

v.  Kimball,  50. 

v.  Neal,  73,  81. 

Adm.  Law — 39. 


610  TABLE  OF  CASES. 

[references  are  to  sections.] 

Santissima  Trinidad,  The,  28. 
Sargent  v.  Gilford,  8,  73. 
Saunders  v.  Baldwin,  127. 
Sawyer  v.  Corse,  45,  77. 

v.  Dooley,  22. 
Scala,  Claim  of,  123. 
Schaffer  v.  Cadwallader,  8. 
Scharf  v.  Tacker,  58. 
School  Directors  v.  Anderson,  39. 
Scircle  v.  Neeves,  91. 
Scott  Co.  v.  Fluke,  77. 
Scudder  v.  Trenton,  etc.,  Co.,  14. 
Secretary  v.  McGarrahan,  114. 
Sellers  v.  Walter,  126. 
Selma  R.  R..  Ex  parte,  4,  36,  38,  113.  134. 
Settlement  of  Accounts,  150. 
Sexton  v.  Lelievire,  118. 
Seymour  v.  United  States,  3. 
Sharon  v.  Salisburg,  82. 
Sharp's  Mfg.  Co.  v.  Rowan.  14. 
Shaw  v.  Macon,  67,  69. 
Shelby  v.  Alcorn,  43. 
Shepley  v.  Cowan,  114. 
Sherbourne  v.  Yuba  Co.,  10. 
Sherer,  122. 

Shober  v.  Cochrane,  37. 
Shoemaker  v.  United  States,  22. 
Shoultz  v.  McPheeters,  24. 
Shrader,  Ex  parte,  18,  22,  23,  29,  86. 
Siebold,  Ex  parte,  54. 
Sights  v.  Yarnalls,  3,  37,  38. 
Silliman  v.  Fredericksburg,  73,  75. 
Silver  v.  Magruder,  46. 
Sims,  In  re,  24. 
Siren.  The,  8. 
Slack  v  Jacob,  30.  31. 
Smith,  122. 

In  re,  97,  98,  99. 

v.  Gove,  20. 

v.  Serobach,  38,  69. 
Snapp  v.  Commonwealth,  44. 
Snow,  In  re,  86. 


TABLE  OF  CASES.  611 


[REFERENCES   ABE  TO   SECTIONS.] 


Snow  v.  Deerfield,  73. 
Snyder  v.  Marks,  117,  125. 

v.  Sickles,  64. 
So.  Minnesota  Ry.  v.  Kufner,  127. 
Sooy  v.  State,  10,  74,  86. 
South  v.  Commissioners,  49. 
Spalding  v.  Vilas,  11. 
Spangler,  Matter  of,  98,  99,  133. 
Speed  v.  Crawford,  24,  46. 
Spencer  v.  Merchant,  116. 
Spitznogle  v.  Ward,  113,  117. 
Sponogle  v.  Curnow,  49,  59. 
Springer  v.  United  States,  93. 
Springfield,  etc.,  Co.  v.  Lane  Co..  37. 
Springfield  F.  &  M.  Ins.  Co.  v.  Keeseville,  10. 
Sproat  v.  Durland,  135. 
State  v.  Abbott,  46. 

v.  Allison,  93. 

v.  Anderson,  45. 

v.  Archibald,  51. 

v.  Askew,  46,  48. 

v.  Auditor,  1,  38. 

v.  Babcock,  3,  35. 

V.  Bank,  8,  78. 

v.  Barber,  47. 

v.  Barbour,  46,  51. 

v.  Barker,  40,  132. 

v.  Bell,  1,  131. 

v.  Bevers,  76. 

v.  Bike,  29. 

v.  Bishop,  37. 

v.  Blasdel,  40. 

v.  Bloxham,  58,  60. 

v.  Board  of  Examiners,  114. 

v.  Board  of  Lands,  50. 

v.  Board  of  Liquidation,  38.  57. 

v.  Board  of  Public  Works,  8. 

v.  Bourgeois,  69. 

v.  Briggs,  46. 

v.  Broome,  43,  45. 

v.  Brown,  57,  87. 

v.  Bulkeley,  27. 

v.  Burke,  8. 


612  TABLE  OF  CASES. 

[references  are  to  sections.] 

State  v.  Buss,  43. 
v.  Buttz,  54,  55. 
v.  Cahen,  31. 

v.  Chase,  18,  19,  27,  29,  40. 
v.  Chatburn,  51. 
v.  Cheney,  116,  134. 

v.  Chicago,  etc.,  R.  R.,  22,  113,  116, 134,  135. 
v.  Clark,  4,  56. 
v.  Cobb,  43,  44. 
v.  Collins,  8. 

v.  Commissioners,  131,  135. 
v.  Constantine,  46. 
v.  Coon,  2,  12. 
v.  Cooper,  50. 
v.  County  Com'rs,  3,  5,  38. 
v.  Crawford,  67,  70. 
v.  Davis,  97,  98,  133. 
v.  Dierberger,  87. 
v.  Dike,  18,  19. 
v.  Dillon,  48,  56. 
v.  Doyle,  2,  13. 
v.  Drew,  2,  19,  35,  78. 
v.  Dubuclet,  3,  37. 
v.  Farmers'  Trust  Co.,  22. 
v.  Feibleman,  60. 
v.  Fisher,  29. 
v.  Fletcher,  36. 
v.  Francis,  1,  38,  40. 
v.  Frazier,  49. 
v.  Galusha,  58. 
v.  Gamble,  4,  38,  69,  131,  132. 
v.  Gardner,  43,  45. 
v.  Gilmore,  56. 
v.  Gleason,  31. 
v.  Glenn,  5'6. 
v.  Godwin,  9,  13. 
v.  Governor,  19. 
v.  Hadley,  46. 
v.  Hancock  Co.  Com'rs,  73. 
v.  Hartford,  8,  73. 
v.  Harvey,  4,  6,  35. 
v.  Haskell,  82. 


TABLE  OF  CASES. 

[references  are  to  sections.] 

State  v.  Hastings,  38,  57,  58,  73,  132. 
v.  Hathaway,  18,  22,  24. 
v.  Hawkins,  49. 
v.  Haworth,  75,  80. 
v.  Hays,  73,  74. 
v.  Hickson,  51,  68. 
v.  Hill,  11,  76. 
v.  Hoblitzelle,  39. 
v.  Hocker,  43,  54,  56. 
v.  Hudson,  85. 
v.  Hutt,  58. 
v.  Hyde,  18,  27. 
v.  Jennings,  43,  44. 
v.  Johnson,  24,  49,  50. 
t.  Joiner,  82. 
v.  Jumel,  8. 
v.  Keena,  58. 
v.  Kiichli,  54,  56. 
v.  Knoxville,  16. 
v.  Kruttschnitt,  1,  12,  14. 
v.  Lamantra,  54,  56. 
v.  Lawrence,  69. 
v.  Lesueur,  38. 
v.  Lovell,  46. 
v.  Mason,  12,  58. 
v.  May,  44. 
v.  Mayes,  8. 
v.  Mayne,  60. 
v.  McCarthy,  67. 
v.  McCollister,    47. 
v.  McGrath,  2,  3,  35. 
v.  McMillan,  18,  27,  85. 
v.  Medical  Examiners,  114. 
v.  Milner,  39. 
v.  Mitchell,  50,  51. 
v.  Moore,  2,  4,  35. 
v.  Moores,  43. 
v.  Nield,  58. 
v.  Olson,  82. 
v.  Owen,  50. 
v.  Paterson,  63. 
v.  Peelle,  47. 
v.  Perrine,  2,  35. 


613 


614  TABLE  OF  CASES. 

[references  are  to  sections.] 

State  v.  Peterson,  49,  51. 

v.  Police  Com'rs,  49. 

v.  Prince,  50. 

v.  Register,  49. 

v.  Robinson,  3,  35. 

v.  Roderick,  40. 

v.  Ruth,  2,  12. 

v.  Scott,  36,  78. 

v.  Seavey,  49. 

v.  Secretary.  69. 

v.  Shakespeare,  18,  22. 

v.  Shaw,  63. 

v.  Smith,  51. 

v.  Snodgrass,  2,  3,  35. 

v.  Snyder,  8. 

v.  Somersett,  35. 

v.  Spaulding,  43,  45. 

v.  Sponaugle,  90,  92,  94. 

v.  Squire,  48. 

v.  Staley,  70. 

v.  Staub,  2,  4,  18,  22,  29,  35,  38,  78,  131. 

v.  Stone,  19. 

v.  Strickland,  73. 

v.  Thorston,  19. 

v.  Thrasher,  3,  35,  78,  113. 

v.  Titus,  40. 

v.  Torinus,  8. 

v.  Towns,  19. 

v.  Trenton,  51. 

v.  Trustees,  114. 

v.  Vanarsdale,  4,  38,  40. 

v.  Verner,  115. 

v.  Wagner,  27. 

v.  Waite,  54,  56. 

v.  Walbridge,  79. 

v.  Warmoth,  19,  29,  35. 

v.  Welsh,  67,  70. 

v.  Weston,  57,  73. 

v.  Wilson,  90,  94. 

v.  Wrotnowski,  2,  4,  38,  67,  70. 

v.  Yopp,  78. 
State  House  Commission,  In  re,  58. 
State  House  Fund,  In  re,  8,  73. 


TABLE  OF  CASES.  615 


[references  are  to  sections.] 


Staude  v.  Election  Coni'rs,  20. 
Stevens  v.  Lake  George  R.  R.,  79. 

v.  Robinson,  127. 
Stewart  v.  Freeholders,  49. 

v.  McHarry,  115. 
Stillman  v.  Isham,  10. 
Stone  v.  Greaves,  105,  106. 
Strawbridge,  In  re,  55.  " 
Strickfaden  v.  Zipprick,  1,  12,  15.  118. 
Stuart  v.  Gould,  51. 

v.  Palmer,  114,  116,  134. 
Sugar  Bounty,  In  re,  123. 
Sullivan  v.  Earl  Spencer,  29,  85. 
Summers  v.  Daviess  Co.  Com'rs,  11.  76. 
Sumner  v.  Beeler,  13. 
Sunapee  School  District  v.  Perkins,  35. 
Supervisors  v.  Catlett's  Ex'rs,  131. 
Supervisors  of  Election,  18,  22. 

v.  United  States,  40. 
Sutro  v.  Pettit,  74. 
Swan  v.  Buck,  39. 

v.  Gray,  3,  4,  35,  37,  78.  79. 
Syme  v.  Butler,  81. 
Symonds  v.  United  States,  100. 


Taggart  v.  Commonwealth,  56. 

Tardos  v.  Bozant,  132. 

Tate  v.  Salmon,  8. 

Taxes,  128. 

Taylor  v.  Beckham,  27. 

v.  Commonwealth,  46. 

v.  Place,  18,  22,  24,  27,  85. 
Tellefsen  v.  Fee,  1,  90,  92. 
Tennessee  v.  Davis,  54. 

Tennessee,  etc.,  R.  Co.  v.  Moore,  19,  29,  30,  86. 
Terlinden  v.  Ames,  30. 
Terrill  v.  Rankin,  88. 
Territory  v.  Ashenfelter,  47,  51. 

v.  Cox,  49. 

v.  Stokes,  58. 
Thames  Mfg.  Co.  v.  Lathrop,  12. 


616  TABLE  OF  CASES. 

[references  are  to  sections.] 

Thomas  v.  Burrus,  47. 

v.  Owens,  40,  57,  73, 118. 

v.  Wilton,  113. 
Thompson's  Case,  75,  81. 

v.  Canal  Fund  Com'rs,  27. 

v.  German  Valley  R.  R.,  20. 

v.  Utah,  32. 
Thorp  v.  Woolman,  22,  24. 
Thurston  v.  Hudgins,  115. 
Tinkum,  Ex  parte,  2,  12. 
Tobin  v.  Reg.,  8,  9. 
Todd  v.  Dunlap,  51,  68. 
Torreyson  v.  Board,  8. 
Towle  v.  State,  3,  36,  79. 
Townsend  v.  Kurtz,  51. 
Tracy  v.  Cloyd,  77. 
Trainor  v.  Board,  45. 
Treasurers'  Appointment,  In  re,  55. 
Trimble  v.  People,  49,  51,  68. 
Triplett  v.  Gill,  63. 
Trotter  v.  Yowell,  127. 
Tucker  v.  Shorter,  81. 
Turner  v.  Althaus,  20,  22. 

v.  Melony,  69. 
Turnpike  Co.  v.  Brown,  18,  35,  79. 
Tutt  v.  Hobbs,  81. 
Tuttle,  122. 
Tyler  v.  Pomeroy,  31. 

u. 

Ulman  v.  Baltimore,  113. 

Unliquidated  Damages,  123. 

Union  Trust  Co.  v.  Wayne,  Probate  Judge,  117. 

United  Lines  Tel.  Co.  v.  Grant,  131,  135. 

United  States  v.  Alire,  23. 

v.  Arredondo,  28. 

v.  Avery,  49. 

v.  Badean,  98. 

v.  Black,  4,  38,  65,  121. 

v.  Blaine,  30,  31. 

v.  Burke,  131. 

v.  Chandler,  4,  36,  79. 


TABLE  OF  CASES.  617 


[references  are  to  sections.] 


United  States  v.  Clark,  14. 

v.  Commissioners,  35,  36. 

v.  Dastervignes,  98,  133. 

v.  Douglass,  35,  78,  113,  134. 

v.  Duell,  21,  35. 

v.  Eaton,  133. 

v.  Eliason,  97,  98. 

v.  Ferreira,  20. 

v.  Garlinger,  135. 

v.  Goodsell,  97,  99. 

v.  Guthrie,  35. 

v.  Harmon,  118,  121. 

v.  Hartwell,  43,  44. 

v.  Hatch,  44. 

v.  Johnston,  145. 

v.  Jones,  121. 

v.  Jordan,  116. 

v.  Kirkpatrick,  82. 

v.  Klein,  88. 

v.  Lamont,  35,  113. 

v.  Lee,  1,  12. 

v.  Lee  Huen,  135. 

v.  Lies,  21. 

v.  Lynde,  30. 

v.  Macdaniel.  100. 

v.  Mouat,  45. 

v.  Mullin,  89. 

v.  Ormsbee,  98,  99,  133. 

v.  Palmer,  28. 

v.  Perkins,  48. 

v.  Raum,  4,  65. 
v.  Ritchie,  20. 

v.  Rugh,  102. 

v.  Schurz,  4,  38,  132. 
v.  Seaman,  35,  36. 

v.  Sherman,  13. 

v.  Surety  Co.,  8. 

v.  Symonds,  97. 

v.  Tappan,  121. 

v.  Teller,  121. 

v.  Thacher,  126. 

v.  Three  Barrels,  135. 
v.  Two  Hundred  Barrels,  133 


518  TABLE  OF  CASES. 

[references  are  to  sections.] 

United  States  v.  Union  Pac.  R.  R.,  101. 
v.  Windom,  40. 


Vallandingham,  Ex  parte,  21. 

Vance  v.  Burbank,  121. 

Vandeveer  v.  Mattocks,  87. 

Van  Dusen  v.  People,  73,  74. 

Vicksburg  &  M.  R.  Co.  v.  Lowry,  19,  29. 

Violett  v.  Alexandria,  94,  116. 

Vose  v.  Deane,  73,  80. 

w. 

Wahl  v.  Walton,  91. 
Waite  v.  Delesdernier,  79. 
Walker  v.  Hallock,  114. 
Wall  v.  Blasdel,  40. 

v.  Trumbull,  131. 
Warren  v.  Kelley,  13. 
Water  Power  Co.  v.  Electric  Co.,  14. 
Watson  v.  Watson,  63. 
Webber  v.  Davis,  47. 
Weidman  v.  Board,  50. 
Weimer  v.  Bunbury,  93,  116. 
West  v.  Cochran,  125. 
Western  Union  Tel.  Co.  v.  Myatt,  22. 

v.  Henderson.  24. 
Weston  v.  Dane,  3,  8-10,  36,  79. 
Whalin  v.  Macomb.  3.  37. 
Wheeler  v.  Cincinnati,  11,  76. 
White  v.  Jones,  81. 
Whitehouse  v.  Langdon,  43,  45. 
Whiteley  v.  McCormick,  126. 
Whiteside  v.  United  States,  76,  86. 
Whittam  v.  Zahorik,  46. 
Wickersham  v.  Brittan,  47,  48. 
Wilcox  v.  People,  49. 
Wild  v.  Paterson,  11,  76. 
Wiley,  Ex  parte,  54,  56. 
Wilkins  v.  United  States,  98. 
Williams  v.  Adams,  10. 


TABLE  OF  CASES.  619 


[REFEREN'CES  are  to  sections.] 


Williams  v.  Gloucester,  49,  50. 

v.  Schmidt,  1,  13. 

v.  Suffolk,  28. 

v.  United  States,  3,  63. 

v.  Weaver,  113,  118. 
Wilson  v.  Lucas,  46. 

v.  Salem,  93. 

v.  United  States,  100. 

v.  Yakel,  126. 
Winona,  etc.,  Land  Co.  v.  Minnesota,  94. 
Wisconsin  Cent.  R.  R.  v.  Forsythe,  134. 

v.  United  States,  118. 
Wixon  v.  Newport,  11,  76. 
Wolffe  v.  State,  14. 
Wood  v.  Drake,  55. 
Woodward  v.  Campbell,  78,  79. 
Wooley  v.  Baldwin,  14. 
Woolfork  v.  Buckner,  117,  135. 
Worcester  v.  Georgia,  18. 
Words  v.  Gary,  59. 
Work  v.  Hoofnagle,  12. 
Workman  v.  New  York,  11,  76. 
World's  Columbian  Exposition,  123. 
Worthington  v.  Scribner,  29. 
Worthy  v.  Kinamon,  88. 
Wright  v.  Nagle,  75. 


Yealy  v.  Fink,  1,  14. 
Young  v.  Blackhawk  Co.,  63. 
Yount  v.  Carney,  91. 


Zeidler  v.  Leech,  126 


INDEX. 


[references  are  to  sections.] 


ACTIONS, 

against  the  state,  7. 

state  irresponsible,  8. 

as  principal,  73. 

not  liable  in  tort,  72. 

under  any  circumstances,  76. 

liable  in  contract,  75. 

under  certain  circumstances,  74. 
against  an  officer,  7,  72. 

officers  responsible,  12. 

as  agents,  78. 

liable  in  tort,  15. 

under  all  circumstances,  14. 

not  liable  in  contract,  79. 

except  under  certain  circumstances,  81. 

ADJUDICATION, 

jurisdiction  for  adjudication,  113. 

exclusive,  114. 

final,  115. 

limitation,  134. 

scope,  112. 
processes  in  adjudication,  120. 

ex  parte,  121. 

inter  partes,  125. 
conditions  in  adjudication,  116. 

concurrent,  117. 

alternative,  118. 
nature  of  adjudication,  84. 

judicial,  21. 

administrative,  119. 


622  INDEX. 

[references  are  to  sections.] 

ADMINISTRATION, 

theories  of  administration,  62. 
methods  of  administration,  63. 
processes  of  administration,  121. 
schemation  of  administration,  84. 
centralized  administration,  63. 

delegation,  63. 

interdependence,  64. 

superior,  65. 

inferior,  66. 

interrelation,  63. 

responsibility,  77. 
decentralized   administration,    67. 

personal,  67. 

independence,  68. 

higher,  69. 

lower,  70. 

sequence,  69. 

ADMINISTRATIVE  FUNCTIONS, 

nature  of  administrative  functions,  35,  38. 
extent  of  administrative  functions,  131,  135. 
position  of  administrative  functions,  114,  115. 
administrative  functions  distinguished,  26,  34. 
discretionary  powers,  35,  113. 

methods,  50,  125. 

processes,  51,  121. 
ministerial  duties,  37,  135. 

methods,  63,  67. 

obligation,  13,  14. 

ADMINISTRATIVE  LAW. 

definition  of  administrative  law,  1. 

historical  of  topic,  1. 

nature  of  topic,  1. 

classification  of  administrative  law,  1. 

external  law,  3. 

internal  law,  4. 
subjects  of  administrative  law,  83. 

administration  by  execution.  84,  132. 

administration  by  legislation,  96,  133. 

administration  by  adjudication,  115,  134. 


INDEX.  623 


[references  are  to  sections.] 
ADMINISTRATIVE  LAW— Cont'd. 

scope  of  administrative  law,  26. 

powers  of  officers,  27,  30. 

duties  of  officers,  35,  38. 
delimitations  of  administrative  law,  7. 

responsibility  of  officers,  8,  12. 

authority  of  officers,  73,  78. 

AGENT. 

officer  as  agent  for  the  state,  73,  78. 
limitation  of  authority  to  law,  74.  79. 
implication  of  authority  to  bind  state,  75,  80. 
responsibility  of  state.  70.  81. 

liability  in  contracts.  10,  81. 

answerability  for  tort,  12,  76. 

waiver  by  officer,  74,  75. 

laches  of  officer,  74,  82. 
superior  officer  as  principal,  65.  77. 

inferior  officer  as  agent.  75,  77. 

authority  of  officer,  9,  12. 

position  of  officer,  11.  75. 

AGRICULTURE  DEPARTMENT, 
history  of,  58. 
organization  of,  60. 
administration  in,  60. 

APPOINTMENT, 

nature  of  appointment.  46. 
appointment  distinguished.  46. 

primary  for  office,  48. 

secondary  for  vacancy,  48. 

absolute  without  qualifications,  48. 

conditional  with  qualifications,  48. 
executive  action,  47. 
civil  service  commission,  48. 

priorities  on  list,  48. 

preferences  on  list,  48. 

ARREST, 

to  prevent  felony,  91. 
in  breach  of  peace,  91. 
without  warrant,  91. 
justification,  91. 


624  INDEX. 

[inferences  are  to  sections.] 

AUDITORS, 

functions  of,  118. 
processes  of,  118. 
payment  by,  35. 
refusal  by,  48. 

AUTHORITY, 

nature  of  official  functions,  26,  34. 
executive  functions,  27. 

political,  27. 

inherent,  28. 
administrative  functions,  35. 

governmental,  30. 

derivative,  38. 
extent  of  official  powers,  73,  78. 
discretionary  powers,  35. 

general,  36. 

directory,  37. 
ministerial  powers,  38. 

specific,  39. 

mandatory,  4Q. 
scope  of  official  authority,  74,  79. 
state  as  principal,  73. 

limitation,  74. 

implication,  75. 
officer  as  agent,  78. 

authorization,  79. 

interpretation,  80. 


B. 

BOARDS, 

organization  of,  56. 
jurisdiction  of,  112. 

prohibiting,  24. 

certifying,  48. 

fixing,  22. 

assessing,  IS. 

disposing,   114. 


INDEX.  625 

[references  auk  to  sections.] 


BUREAUX, 


constitution,  59. 
correlation,  59. 
subdivision,  60. 
organization,  58. 


c. 


CENTRALIZED  ADMINISTRATION, 

theories  of  administration,  62,  71. 
centralized  administration  denned,  63. 
decentralized  administration  distinguished,  67. 
delegation,  the  first  basis,  63. 
what  functions  may  be  delegated,  63. 
what  functions  may  not  be  delegated,  63. 
interdependence,  the  second  basis,  64. 
relation  of  the  chief  executive  to  heads,  64. 
relation  of  heads  to  subordinates,  64. 
subordination,  the  third  basis,  57. 
obedience  of  inferior,  65. 
orders  of  superior,  77. 

COLONIAL. 

governmental  powers,  30. 
colonial  administration,  32. 
levying  tariff,  32. 
constitutional  limitations,  32. 

CONSTRUCTION, 

of  statutes,  34. 

directory.  37. 

mandatory.  40. 

general,  36. 

specific,  39. 
of  authority,  73. 

limitation.  74. 

implication.  75. 

authorization.  79. 

interpretation,  80. 

Adm.  Law — 40. 


626  INDEX. 

[REFERENCES   ABE   TO    SECTIONS.] 

CONTRACTS, 

state  as  principal,  72. 

irresponsible  in  any  way,  8. 
without  express  consent,  9. 
extent  of  authorization,  73. 
implication,  75. 
limitation,  74. 
officer  as  agent,  78. 

responsible  in  every  way,  32. 
unless  acting  with  authority,  81. 
interpretation,  80. 
representation,  79. 
if  acting  without  authority,  80. 
no  implied  warranty,  81. 
unless  express  declaration,  81. 
no  personal  liability,  81. 
unless  express  undertaking,  81. 

COUNTY, 

system  of  officers,  56. 
organization  of,  56. 
supervisor  system,  56. 
commissioner  system,  56. 


I). 


DECENTRALIZED  ADMINISTRATION, 

theories  of  administration.  62.  71. 
federal  administration  centralized.  62. 
state  administration  decentralized,  t '►  li . 
personal  action,  the  first  basis,  67. 

what  functions  may  not  be  delegated,  63. 

what  functions  may  be  delegated,  63. 
independence,  the  second  basis,  68. 

relation  of  superior  to  inferior,  69. 

relation  of  inferior  to  superior,  77. 
co-ordination,  the  third  basis,  70. 

sequence  in  action,  69. 

precedent  conditions,  68. 

DE  FACTO  OFFICER, 
constitution  of,  43. 


INDEX. 

[references  are  to  sections.] 
DE  FACTO  OFFICER— Cont'd. 

by  acquiescence  in  claim,  43. 

by  failure  to  conform  to  conditions,  43. 

by  want  of  power  in  creation,  43. 

by  reason  of  unconstitutional  law,  43. 
position  of  officer  de  facto  valid,  43. 

toward  third  persons.  43. 

not  toward  government.  43. 

DELEGATION, 
authority,  63. 
when  allowed,  63. 

ministerial  action,  63. 

inferior,  67. 
when  forbidden,  63. 

personal  action.  63. 

superior,  68. 

DEPARTMENT, 
constitution,  57. 
separation,  58. 
correlation,  58. 
subdivision,  59. 
organization,  57. 

DEPUTY. 

delegation  of  authority,  63. 

when  allowed,  63. 

when  forbidden,  63. 
responsibility,  77. 

superior  not  liable,  77. 

for  inferior,  77. 
subordination,  64. 

obedience  of  inferior,  65. 

to  superior,  66. 

DISCRETIONARY  POWERS, 

scope  of  discretionary  powers,  45. 
nature,  36,  37. 

force,  113,  116. 

extent,  131,  135. 

finality,  114,  115. 

methods,  50,  121. 


627 


628 


INDEX. 


[references  are  to  sections.] 
DISCRETIONARY  POWERS— Cont'd. 

processes,  51,  125. 

express  powers,  73,  74. 

authorization,  78,  79. 
implied  powers,  75,  78. 

interpretation,  79,  80. 

review  of  discretion,  37,  114. 
collateral  attack,  117,  118. 

DISTRIBUTION  OF  FUNCTIONS, 

differentiation  of  departments,  18. 

independence,  68. 

interdependence,  64. 

exclusive  action,  114. 

concurrent  action,  117. 
division  of  functions,  18. 

distribution  of  functions,  20,  23. 

confusion  of  functions,  24. 

DIVISION, 

constitution,  57. 
organization,  58. 
correlation,  59. 
subdivision,  60. 

DIVISIONS  BETWEEN  ADMINISTRATIONS, 

basis  of  division  in  administration,  54,  57. 
subdivision,  57. 

federal  administration,  55. 

state  administration,  56. 

central  offices,  56. 

local  agencies,  56. 
county  administration,  56. 

commissioner  system,  56. 

supervisor  system,  56. 
local  administration,  56. 

municipal,  56. 

rural,  56. 

DUTIES, 

construction  of  statutes,  34. 
directory  laws,  37. 


INDEX.  629 

[references  are  to  sections.] 


DUTIES— Cont'd. 


mandatory  laws,  40. 

external  obligations,  3. 

internal  obligations,  4. 
interpretation  of  obligations,  80. 
discretionary  duties,  35. 

general,  36. 

ministerial  duties,  38. 

specific,  39. 
scope  of  duties,  72. 

express  powers,  73. 

authorization,  78. 

implied  powers,  75. 

limitation,  74. 
enforcement  of  duties,  64. 

obedience  by  inferior,  66. 

to  superior,  65. 

E. 

ELECTION, 

nature  of  election,  46. 
election  distinguished,  46. 
definition  of  election,  47. 
electorate,  47. 
nomination,  47. 
qualification,  47. 
count,  116. 
commission,  34. 

EMPLOYMENT, 

nature  of  employment,  43. 
characteristics  of  employment,  43. 
employment  distinguished,  44. 
tests  to  determine  employment,  45. 
duties  of  employment,  45. 
power  of  employment,  45. 
position  of  deputies,  43. 
civil  service  rules,  47. 

EXECUTION, 

methods  in  administration,  84. 


630  INDEX. 

[references  are  to  sections.] 
EXECUTION— Cont'd. 

extraordinary  processes,  30,  85. 

enforcement,  86. 

apprehension,  87. 

military  powers,  86. 

war  powers,  27. 

commandeering,  88. 

governmental,  30. 

coercion,  89. 

posse  comitatus,  89. 
ordinary  processes,  90,  121. 

arrest,  91. 

without  warrant,  91. 

seizure,  92. 

fair  process,  91. 

demand,  93. 

destruction,  92. 

distraint,  94. 

EXECUTIVE  FUNCTIONS, 

nature  of  executive  functions,  27,  30. 
irresponsibility  of  the  executive,  10,  12. 
independence  of  the  executive,  18,  22. 
political  powers,  27. 

external,  28. 

internal,  29. 
governmental  powers,  30. 

interior,  31. 

exterior,  32. 


G. 

GOVERNOR, 

executive  functions,  37. 

calling  out  militia,  31. 

appointing  to  office,  46. 

removing  from  office,  49. 
administrative  functions,  38. 

issuing  certificate,  19. 
ordering  state  boards,  67. 


INDEX.  631 


[references  are  to  sections.] 

GOVERNMENTAL  POWERS, 

immunity  of  the  sovereign,  8,  12. 
irresponsibility  of  the  administration,  10,  11. 
independence  of  the  executive,  18,  22. 
executive  functions,  29. 

pardon,  30. 

appointment,  48. 
administrative  functions,  31. 

discretionary,  34,  35. 

ministerial,  38,  39. 


INTERIOR  DEPARTMENT, 

history  of,  58. 
divisions  of,  59. 
administration  of,  65. 
processes  in,  5. 
functions  of,  38. 


JURISDICTION, 

extent  of  jurisdiction,  130. 

limitation  upon  jurisdiction,  131. 

in  execution  of  the  administration,  74,  132. 

in  legislation  of  the  administration,  98,  133. 

in  adjudication  of  the  administration,  116,  134. 

collateral  attack,  135. 

conclusion,  136. 

JUSTICE,  DEPARTMENT  OF, 

organization,  58. 
history  of,  58. 
implied  powers  of,  80. 


LAND  OFFICE, 

acting  for  president,  4. 
ordering  local  officers,  5. 


532  INDEX. 

[references  are  to  sections.] 

LAND  OFFICE— Cont'd. 

fixing  bounds,  35. 

subordinate  to  interior  department,  66. 

adjudication  of,  115. 

process  in,  127. 

jurisdiction  of,  135. 


M. 


MANDAMUS, 

refused  when  duties  discretionary,  35. 

to  issue  trade  mark,  3. 

to  pay  judgment  with  interest,  13. 

granting  pension,  35. 

fixing  land  bounds,  35. 

remitting  forfeitures,  36. 

paying  charges,  40. 

where  subordinate  has  discretion,  65. 

never  to  president,  19. 
granted  when  duties  ministerial,  33. 

to  issue  commission,  34. 

directing  allowances,  38. 

causing  issue  of  patent,  38. 

to  enforce  obedience,  65. 

to  governors,  19,  35. 

METHODS, 

three  methods  of  administration,  84. 
administration  by  execution,  85. 

extraordinary  process,  85. 

ordinary  process,  90. 
administration  by  legislation,  96. 

written  rules,  97. 

unwritten  rules,  100. 
administration  by  adjudication.  112. 

jurisdiction,  113. 
processes,  116. 

MINISTERIAL  DUTIES, 

scope  of  ministerial  duties,  39.  40. 
methods,  63,  67. 


INDEX.  633 


[references  are  to  sections.] 

MINISTERIAL  DUTIES— Cont'd. 

processes,  66,  70. 
responsibility  in  ministerial  duties,  13.  15. 
express  powers,  73,  74. 
authorization,  78,  79. 
implied  powers,  75,  78. 
interpretation,  79,  80. 

MUNICIPAL  OFFICERS, 

organization,  56. 
authority,  74. 
misfeasance,  76. 
nonfeasance,  11. 
mayor,  51. 
commissioners,  74. 


N. 


NAVY  DEPARTMENT, 

bombardment  by,  8£ 
seizing  vessel,  13. 
holding  ship,  30. 
constitution  of,  58. 
powers  of,  75. 


OFFICE. 


O. 


nature  of  office,  43. 

office  de  jure,  43. 

office  de  facto,  43. 
office  distinguished,  44,  45. 

tests  to  determine,  44. 

duties  of  office,  44. 
constitution  of  office,  47. 

position  of  office,  52. 

classification  of  offices,  54. 

organization  of  offices,  57. 


634 


INDEX. 


[references  ake  to  sections.] 
OFFICERS— FEDERAL, 
President, 

executing  reconstruction  *°w,  19. 
calling  out  militia,  31. 
levying  tariff,  32. 
extraditing  criminal,  33. 
appointing  to  office,  47. 
removing  from  office,  50. 
cannot  remove  state  officers,  55. 
relation  to  the  administration,  62. 
acts  through  heads  of  departments,  G3. 
heads  of  departments  act  under  him,  64. 
all  administration  under,  70. 
suspension  of  habeas  corpus,  87. 
show  of  force  by,  88. 

State  Department, 

determining  boundaries,  27,  29. 
accrediting  states,  27. 
recognizing  belligerency,  28. 
negotiating  claims,  28. 
deciding  governments,  29. 
issuing  commission,  34. 
paying  consul,  44. 
history  of,  58. 

Department  of  Justice, 
organization  of,  58. 
history  of,  58. 
implied  powers  of,  80. 

War  Department, 

instructions  obeyed,  2. 
holding  possession,  3. 
infringing  patent,  13. 
commandeering  mules,  16. 
deciding  on  pensions,  22. 
governing  districts,  30. 
levying  tariff,  32. 
history  of,  58. 
force  of  regulations  of,  97. 

Navy  Department, 

seizing  vessel,  13. 


INDEX.  635 


[references  are  to  sections.] 

OFFICERS— FEDERAL— Cont'd. 

holding  ship,  30. 
granting  pension,  35. 
history  of,  58. 
contracts  of,  75. 
bombardment  by,  88. 

Interior  Department, 

waiving  regulation,  4. 
ordering  commissioner,  5. 
directing  issue  of  patent,  38. 
history  of,  58. 
bureau  of,  59. 
subordination  of  bureau,  65,  66 

Treasury  Department 

paying  judgment,  13. 
directing  payment,  37. 
history  of,  58. 
bureau  of,  59. 
implied  powers,  80. 
distraint  by,  93. 

Post  Office  Department, 
history  of,  58. 
directing  allowances,  58. 
responsibility  for  subordinates,  77. 

Agriculture  Department, 
history  of,  58. 
divisions  of,  60. 

Commerce  Department, 
history  of,  58. 

OFFICERS— STATE, 
Governor, 

issuing  certificate,  19. 
calling  out  militia,  31. 
appointing  to  office,  46. 
removing  from  office,  49. 
relation  to  the  administration,  62. 
state  boards  independent,  67. 
state  heads  independent,  67. 


636  INDEX. 

[references  are  to  sections.] 
OFFICERS— STATE— Cont'd. 
State  Boards, 

disposing  of  land,  14. 
assessing  taxes,  18. 
fixing  rates,  22. 
prohibiting  importations,  24. 
certifying  for  vacancies,  48. 
organization  of,  56. 
jurisdiction  of,  112. 
limitation  on,  132. 

State  Officers, 

compelling  payment  by  auditor,  35. 
compelling  conveyance  by  auditor,   36. 
supporting  comptroller  in  refusal,  48. 
system  of  state  officers,  56. 
compelling  secretary  to  issue  commission,  67. 
organization  within  state  departments,  68. 

County  Officers, 

removing  overseers,  51. 
system  of  county  officers,  56. 
supervisors,  56. 
commissioners,  56. 
powers  of,  79. 

Municipal  Officers, 

not  liable  for  nonfeasance,  11. 

when  liability  for  misfeasance,  11. 

burning  rubbish,  16. 

removals  by  mayor,  51. 

organization  of,  56. 

authority  of  commissioners,  74. 

distraint  upon,   93. 

Town   Officers, 

school  teachers,  44. 
organization  of,  56. 
constables  of,  76. 
assessment  by,  94. 

ORGANIZATION, 

principles  of  organization,  53,   61. 

basis  of  subdivision  in  an  administration,  57. 


INDEX.  637 


[references  are  to  sections.] 
ORGANIZATION— Cont'd. 

functional  adaptation,  57. 

co-ordination.  57,  67. 

subordination,  57,  63. 
department,  the  first  subdivision,  58. 

separation,  58. 

constitution,  58. 
bureau,  the  second  subdivision,  59. 

constitution,  59. 

correlation,  59. 
division,  the  third  subdivision,  60. 

number,  60. 

employment,  60. 


PATENT  BUREAU, 

issuing  trade  mark,  3. 
appeal  whence,  21. 
divisions  of,  60. 
commission,   63. 
subordinate  officials,  66. 
organization  in,  67. 
process  in,  126. 
jurisdiction  of,  118. 

PEACE  OFFICERS, 

killing  to  prevent  felony,  90. 
abatement  of  nuisance,  92. 
arrest  for  breach  of  peace,  91. 
liability  for,  76. 
probable  cause  a  protection,  91. 

PENSION  BUREAU, 

obeying  secretary,  5. 

granting  pension,   40. 

divisions  of,  60. 

commissioner  under  secretary,  65. 

regulations  of,  100. 

adjudication  of,  4. 

process  in,  122. 

jurisdiction  for,  134. 


638 


INDEX. 


[REFERENCES    ARE    TO    SECTIONS.] 

POST  OFFICE  DEPARTMENT, 

history  of,  58. 
organization  of,  59. 
directing  allowance,  58. 
administration  in,  77. 

POLITICAL  POWERS, 

immunity  of  sovereign,  8,  12. 

irresponsibility  of  the  administration,  10,  11. 

independence  of  the  executive,  18,  22. 

definition  of  political  powers,  27,  30. 

international  relations.  27. 

diplomatic  functions,  28. 

colonial  administration,  32. 

military  powers,  85,  86. 

responsibility  in  governmental  action,  10,  27. 

PRESIDENT, 

executive  functions  of,  27. 

executing  law,  19. 

calling  out  militia,  31. 

levying  tariff,  32. 

extraditing  criminals,  33. 

appointing  to  office,  47. 

removing  from  office.  50. 
administrative  functions,  34. 

all  administration  under,  70. 

acts  through  heads  of  departments,  63. 

heads  of  departments  act  under  him,  64. 

PRINCIPAL. 

state  as  principal  of  officer,  73.  78. 
administration  not  subject  to  suit,  8,  12. 
government  not  liable  to  suit,  12,  76. 

limitation  of  authority.  74,  79. 

implication  of  authority,  75,  80. 
responsibility  of  state  of  authorization,  76,  81. 

liability  of  state,  10.  81. 

immunity  of  administration.  12,  76. 
state  not  bound  by  laches,  74,  82. 
officer  cannot  waive  immunity.  10,  74. 


INDEX.  639 

[REFERENCES   aue   to   SECTIONS. J 


PROCESSES, 

ex  parte  proceedings,  121. 

claim,  122. 

allowance.  123. 

collection,  124. 

demand,  93. 

distraint,  94. 
inter  partes  proceedings,  125. 

contest,  126. 

adjudication,  113. 

protest,  137. 

jurisdiction,  134. 

remission,  128. 

decision,  116. 


REGULATIONS, 

nature  of  regulations.  96,  104. 
written  rules,  97. 

scope,  98. 

extent,  99. 

limitation,   133. 
unwritten  rules,  100. 

validity,  101. 

propriety,  102. 

characteristic,  109. 
conflict  with  legislation,  105. 
conflict  with  administration.  108. 

REMOVAL, 

executive  action  inherent,  49. 

power  to  appoint  includes  power  to  remove,  50. 

limitation  upon  power,  51. 

arbitrary,  50. 

without  reasons,  51. 
judicial,  50. 

for  cause,  51. 

process,  50. 

procedure,  51. 


540  INDEX. 

[REFERENCES    ARE    TO  SECTIONS.  J 

s. 

SEIZURE, 

apprehension,  87. 
demand,  93. 
distraint,   94. 
appropriation,  92. 
due  process,  92. 

SOVEREIGNTY, 

theory,  1. 

irresponsibility,  8. 
policy,  9. 
political,  27. 

STATE, 

rule  of  irresponsibility,  8,  73. 
limitation  as  principal,  10.  74. 
position  in  the  courts,  9,  76. 
immunity  as  sovereign,  8,  10. 
governmental  action,  9,  10,  12. 
administrative  action.  11.  75. 
liability  in  contract,  10,  l'>.  79. 
answerability  for  tort,  10,  11,  12,  76. 
state  not  bound  by  laches,  74.  82. 
government  not  liable  for  negligence,  12,  76. 
administration  not  subject  to  suit,  8,  12. 
officer  cannot  waive  immunity  of  state,  70,  74. 

STATE  DEPARTMENT, 

political  functions,  27. 
accrediting  states,  27. 
recognizing  belligerency,  28. 
negotiating  claims,  28. 
ministerial  functions,  134. 
issuing  commission,  34. 
making  certificates,  64. 

SEPARATION  OF  POWERS, 

separation  of  the  departments,  20,  21. 
encroachment,  27,  30. 


INDEX.  ()4] 


[references  A1IE  to  sections.] 

SEPARATION  OF  POWERS— Cont'd. 

co-ordination,  20,  21. 
subordination.  69. 
independence,  68,  69. 
interdependence,  64.  65. 
exclusive  action,  114,  115. 
concurrent  action,   117.  118. 


T. 


TORTS. 


state  as  principal,  73. 

irresponsible  in  any  way,  8. 

under  all  circumstances,  10. 

without  liability,  76. 

without  responsibility,  71. 
officer  as  agent,  78. 

responsible  at  all  times,  L2. 

under  all  circumstances.   L3. 

without  justification,  3. 

if  no  authorization,  15. 

TREASURY  DEPARTMENT, 

history  of,  58. 
organization  of,  59, 
implied   powers,  80. 
express   duties,  37. 


\Y. 


WAR  DEPARTMENT, 

history  of,  58. 
governing  districts,  30. 
levying  tariff,  32. 
regulations  of,  97. 
holding  possession,  3. 
commandeering,  16. 


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